UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5775

WILLIE JAMES BANKS, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Alexander Williams, Jr., District Judge.

(CR-94-44)

Submitted: August 12, 1997

Decided: September 12, 1997

Before HAMILTON and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas G. Ross, ROSS & POWELL, Centreville, Maryland, for

Appellant. Lynne A. Battaglia, United States Attorney, Deborah A.

Johnston, Assistant United States Attorney, Greenbelt, Maryland, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Willie James Banks, Jr., pled guilty to two counts of being a felon

in possession of a firearm, 18 U.S.C.A. § 922(g)(1) (West Supp.

1997), and was sentenced to thirty-three months imprisonment. His

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

U.S. 738 (1967), raising several issues but stating that in his view

there are no meritorious issues for appeal. Banks has filed a pro se

supplemental brief* in which he contests his conviction and sentence.

After a thorough review of the record, we affirm Banks' conviction

and sentence.

Banks purchased two shotguns in December 1994, on separate

occasions, each time falsely representing that he had not been previously convicted of a felony. He was indicted in February 1995 and

pled guilty in April. He made no objection to the presentence report,

which recommended offense level of 12, criminal history category VI

(16 criminal history points), and a guideline sentencing range of 30-

37 months.

In his plea agreement, Banks waived his right to appeal his sentence as long as the offense level determined by the district court was

not greater than 12. During the Fed. R. Crim. P. 11 plea colloquy, the

district court told Banks that once he pled guilty his appeal rights

would be "somewhat limited." However, the waiver of appeal rights

was not called to Banks' attention. A waiver of appeal rights must be

knowingly and voluntarily made. See United States v. BroughtonJones, 71 F.3d 1143, 1146 (4th Cir. 1995). To determine whether a

waiver is knowing and intelligent, the particular facts and circum-

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*After submitting his pro se brief, Banks filed an addendum to it entitled "Motion to Supplement Record." We consider this a motion for

leave to file a supplement to the pro se brief.

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stances of the case, including the background, experience, and conduct of the defendant, must be examined. Id.

Here, the record does not disclose how much consultation Banks

had with his attorney before he entered into the agreement. Banks

dropped out of school in the ninth grade and subsequently was convicted of a string of thefts and other offenses which kept him either

in jail or on probation until he committed the instant offense. His

assertion that he received a G.E.D. while incarcerated was not verified. Banks' only prior experience in federal court was a trespassing

conviction when he was fifteen years old, for which he was sentenced

to sixty days, concurrent with a state juvenile sentence he was then

serving, and two years probation. In 1990, having violated probation,

Banks received a one-year sentence, some of which was spent in a

halfway house. Despite this brush with the federal criminal justice

system, we cannot conclude on the record before us that Banks fully

appreciated the significance of the waiver. Cf. United States v. Davis,

954 F.2d 182, 186 (4th Cir. 1992) (waiver valid though not mentioned

in plea colloquy where college graduate defendant had discussed plea

agreement extensively with defense counsel). Consequently, we find

the waiver ineffective.

In conducting the Rule 11 plea colloquy, the district court failed to

inform Banks that he could be subjected to a term of supervised

release. We find this error harmless in view of Banks' long familiarity

with probationary sentences. Fed. R. Crim. P. 11(h). Banks argues in

his pro se brief that implementation of the Brady Act's background

check and five-day waiting period, see 18 U.S.C.A. § 922(s), would

have prevented him from making an illegal purchase. Be that as it

may, Banks deliberately bought the firearms on the pretense that he

had not been convicted of a felony. He made a knowing and voluntary

plea and the plea was supported by an adequate factual basis. We

therefore affirm the conviction.

In the Anders brief, defense counsel suggests that the district court

erred in refusing to depart below the guideline range on the ground

that Banks bought the shotguns for a lawful reason (protection of his

family) and because he assisted the government in a drug investigation, although Banks did not claim to have provided any assistance at

the time he was sentenced. The district court's decision not to depart

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on this ground or on other grounds suggested for the first time in the

pro se brief is not reviewable on appeal. See United States v. Bayerle,

898 F.2d 28, 31 (4th Cir. 1990).

Both in the Anders brief and in the pro se brief, Banks alleges that

the district court erred in determining his criminal history. After a

careful review of his claims, we do not find that the district court

plainly erred in adopting the criminal history category recommended

in the presentence report. Banks first contends that the offenses

described in ¶¶ 31-32 and in ¶¶ 33-34 of the presentence report should

have been treated as related cases. See U.S. Sentencing Guidelines

Manual, § 4A1.2, comment. (n. 3) (1994) (prior sentences count as

one if offenses occurred on same occasion, were part of single common scheme or plan, or were consolidated for trial or sentencing).

However, Banks did not object to the sentence calculation in the district court. No plain error occurred because Banks did not produce

any evidence that the cases were formally consolidated, see United

States v. Allen, 50 F.3d 294, 297 (4th Cir.), cert. denied, ___ U.S.

___, 63 U.S.L.W. 3907 (U.S. June 26, 1995) (No. 94-9414), or that

the offenses were committed on the same occasion or were part of a

common scheme.

Banks also asserts that no points should have been given for a sentence of probation before judgment listed in ¶ 35 of the presentence

report. Adult diversionary sentences are counted if they involved a

judicial determination of guilt or an admission of guilt in open court.

It is not clear from the presentence report whether there was such an

admission, but Banks did not challenge the calculation on this ground

or any other. Consequently, the district court did not plainly err in

accepting the probation officer's calculation. Banks further argues

that the district court should have departed downward pursuant to

USSG § 4A1.3, p.s. This claim is without merit because Banks did

not move for a departure and a decision not to depart would not be

reviewable in any case. See Bayerle, 898 F.2d at 31.

In his pro se brief, Banks alleges that, in determining his sentence,

the district court considered unreliable information that he had abused

drugs. However, the court did not make reference to possible drug

abuse when imposing sentence and Banks' denial of drug abuse was

included in the report. Banks also argues that he acquired the firearms

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to protect his family and should have received a reduction in offense

level because he intended to use the shotguns for lawful purposes.

The court considered and rejected this argument at sentencing. We

cannot say that the court clearly erred. Last, Banks makes various

claims of ineffective assistance of counsel which we will not consider

on direct appeal because ineffectiveness is not conclusively established by the record. See United States v. Smith , 62 F.3d 641, 650 (4th

Cir. 1995).

In accordance with Anders, we have examined the entire record in

this case and find no other reversible error. We therefore affirm the

conviction and sentence. We grant Banks' "Motion to Supplement

Record." We dispense with oral argument because the facts and legal

contentions are adequately presented in the record and briefs, and oral

argument would not aid the decisional process.

AFFIRMED

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