UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4257

STEPHEN MULLINS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-96-122)

Submitted: May 29, 1998

Decided: September 10, 1998

Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Jane Charnock, CHARNOCK & CHARNOCK, Charleston, West

Virginia, for Appellant. Rebecca A. Betts, United States Attorney,

Susan M. Arnold, Assistant United States Attorney, Charleston, West

Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Stephen Mullins appeals his conviction and sentence after a guilty

plea to conspiracy to distribute and possess with intent to distribute

methamphetamine in violation of 21 U.S.C. § 846 (1994). Mullins'

attorney has filed a brief in accordance with Anders v. California, 386

U.S. 738 (1967), raising two issues but stating that, in her view, there

are no meritorious grounds for appeal. Mullins has filed a supplemental brief pro se, raising four additional issues. After a thorough review

of the record, we affirm.

Mullins' counsel first contends that the district court erred in denying Mullins' pro se motion to withdraw the guilty plea because counsel was ineffective for failing to make the motion. For ineffective

assistance of counsel to constitute a fair and just reason to withdraw

a guilty plea, it must be of constitutional magnitude. See United States

v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). Mullins

cannot show that counsel's failure to timely file the motion on his

behalf prejudiced him. See United States v. Craig, 985 F.2d 175, 179

(4th Cir. 1993) (providing standard). Even if the motion had been

timely filed, he did not establish, inter alia , that his plea was not

knowing and voluntary. See United States v. Moore, 931 F.2d 245,

248 (4th Cir. 1991) (outlining factors courts consider in ruling on

motion to withdraw).

Mullins also claims that the district court erred in denying his

motion to withdraw his guilty plea because he "just didn't understand" that he could be sentenced as a career offender. Although Fed.

R. Crim. P. 11 does not require the district court to inform Mullins

of this possibility, the court did so. The court also informed Mullins

of the statutory minimum and maximum sentences (the guideline

range based on his classification as a career offender fell within that

range), that the guideline range could not be determined until a presentence report was prepared, and otherwise fully complied with Rule

11. See United States v. Wilson, 81 F.3d 1300, 1307 (4th Cir. 1996)

("The key to a [Rule] 32(e) motion is whether or not the Rule 11 proceeding was properly conducted."). On these facts, we find no abuse

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of discretion in the district court's denial of the motion to withdraw.

See id. at 1305.

Mullins' counsel also disputes that Mullins was a career offender.

We review this issue de novo. See United States v. Dickerson, 77 F.3d

774, 775 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3259

(U.S. Oct. 7, 1996) (No. 95-9207). Mullins was in his thirties when

he committed the offense, he pled guilty to conspiracy to distribute

methamphetamine (a controlled substance offense), and he had two

prior felony convictions for armed robbery and aggravated assault

(crimes of violence). See U.S. SENTENCING GUIDELINES MANUAL

§§ 4B1.1, 4B1.2, comment. (n.2) (1994). We also note that Mullins'

1978 armed robbery conviction qualified as a prior felony because

Mullins served a portion of the ten-year sentence during the fifteenyear period predating the commencement of the instant offense. See

USSG § 4A1.2(e)(1); USSG § 4B1.2, comment. (n.4) (stating that

§ 4A1.2(e)(1) applies to the counting of convictions under § 4B1.1);

United States v. Powell, 922 F.2d 212, 213-14 (4th Cir. 1991). Therefore, the district court did not err in classifying Mullins as a career

offender. See Dickerson, 77 F.3d at 775.

Mullins raises four claims in his supplemental pro se brief, none of

which merit extended discussion. First, Mullins' claims that his guilty

plea was not knowing and voluntary because he was threatened with

false information provided by his counsel and he was misled by the

plea agreement's failure to contain the word "conspiracy." This claim

is meritless. At the Fed. R. Crim. P. 11 hearing, Mullins stated that

he had not been threatened or coerced and that he understood he was

pleading guilty to conspiracy to distribute methamphetamine. See

United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991) (stating

that defendant's statement at Rule 11 hearing that he was not coerced

or threatened constitutes "strong evidence of the voluntariness of his

plea"); Via v. Superintendent, Powhatan Correctional Ctr., 643 F.2d

167, 171 (4th Cir. 1981) (holding that statements made at plea hearing

that facially demonstrate plea's validity are conclusive absent a compelling reason why they should not be, such as ineffective assistance

of counsel). Next, although Mullins claims that the district court held

him accountable for drugs that were not reasonably foreseeable to

him, no plain error resulted given that Mullins was a career offender.

See United States v. Perkins, 108 F.3d 512, 516 (4th Cir. 1997) (stat-

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ing standard of review). Third, Mullins contends that he was not

allowed to present mitigating evidence at sentencing, as required by

Fed. R. Crim. P. 32(c)(3)(C). Because the record belies his claim,

there was no plain error. See United States v. Cole, 27 F.3d 996, 998

(4th Cir. 1994) (applying plain error analysis to claim of denial of

allocution). Finally, Mullins' numerous claims of ineffective assistance of counsel should be raised in a motion under 28 U.S.C.A.

§ 2255 (West 1994 & Supp. 1998), and not on direct appeal, because

the record does not conclusively show that counsel was ineffective.

See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

As required by Anders, we have examined the entire record and

find no other meritorious issues for appeal. Because the record discloses no reversible error, we affirm Mullins' conviction and sentence. This court requires that counsel inform her client, in writing,

of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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