UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4925

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BARRY RAY MILES,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Greensboro. James A. Beaty, Jr.,

District Judge. (CR-05-10)

Submitted: April 24, 2006 Decided: May 16, 2006

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,

North Carolina, for Appellant. Anna Mills Wagoner, United States

Attorney, Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES

ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Barry Ray Miles appeals his conviction for conspiracy to

distribute cocaine base in violation of 21 U.S.C. § 846 (2000), and

the resulting 235-month sentence of imprisonment. Miles’s attorney

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

738 (1967), certifying that there are no meritorious issues for

appeal, but identifying eleven possible issues. Miles, informed of

his right to file a pro se supplemental brief, has not done so. We

affirm.

In the first two issues, counsel generally challenges the

district court’s compliance with Fed. R. Crim. P. 11 in accepting

Miles’s guilty plea. Our review of the transcript of the Rule 11

hearing leads us to conclude that the district court fully complied

with the requirements of Rule 11. We therefore find no plain error

in the court’s acceptance of Miles’s guilty plea.

Miles next asserts four issues challenging the sentence

imposed by the district court. He first contends that the district

court should not have included a firearms enhancement in

calculating the guideline range. We find that this claim lacks

merit, as counsel for Miles stipulated to imposition of the

firearms enhancement. The other three sentencing issues are

conclusory challenges to the sentence that we find without merit.

Based on the presentence report and stipulations by the parties,

the district court calculated a guideline range of 235 to 293
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months. The court then imposed the lowest sentence in the range,

235 months of imprisonment, to be followed by five years of

supervised release. 

After United States v. Booker, 543 U.S. 220 (2005),

courts must calculate the appropriate guideline range, consider the

range in conjunction with other relevant factors under the

guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and

impose a sentence. The sentence must be “within the statutorily

prescribed range and . . . reasonable.” United States v. Hughes,

401 F.3d 540, 546-47 (4th Cir. 2005) (citations omitted). “[A]

sentence imposed within the properly calculated Guidelines range

. . . is presumptively reasonable.” United States v. Green, 436

F.3d 449, 457 (4th Cir. 2006) (internal quotation marks and

citation omitted). We find the district court properly calculated

the guideline range. The district court’s sentence is the lowest

sentence available under the guideline range, and the court treated

the guidelines as advisory and considered the § 3553(a) factors.

Accordingly, we find Miles’s sentence to be reasonable under

Booker.

Miles’s challenge to the district court’s denial of his

motion to withdraw the guilty plea and vacate the sentence is

without merit. A defendant may withdraw a guilty plea prior to

sentencing under certain circumstances. Fed. R. Crim. P.

11(d)(2)(B). Miles’s motion to withdraw, filed after sentence was
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imposed, was not timely filed. Under Rule 11(e), a defendant

cannot withdraw a plea after sentence is imposed, and the plea can

only be attacked on direct appeal or collateral attack. Thus, the

district court did not err in denying Miles’s motion.

Miles asserts that his counsel below was constitutionally

ineffective, complaining that counsel stipulated to a drug quantity

of between 150 and 500 grams of crack for sentencing despite the

fact that the plea agreement provided for a guilty plea to “more

than fifty grams” of crack. “Ineffective assistance claims are not

cognizable on direct appeal unless counsel’s ineffectiveness

conclusively appears on the record.” United States v. James, 337

F.3d 387, 391 (4th Cir. 2003). Instead, to allow for adequate

development of the record, a defendant generally must bring his

ineffective assistance claims in a motion under 28 U.S.C. § 2255

(2000). United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

Because the record does not conclusively show that counsel was

ineffective, we will not review this claim.

We reject Miles’s claim that his sentencing for 150 to

500 grams of cocaine base breached the plea agreement, because

Miles stipulated to that amount. His general claim of cumulative

error fails, as well, as we perceive no error in the district

court’s proceedings. 

In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.
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Accordingly, we affirm. This court requires that counsel inform

his 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