                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4909



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DERRICK MOSBY,

                                              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-05-124)


Submitted:   November 30, 2006            Decided:   January 18, 2007


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard L. Cannon, III, CANNON & TAYLOR, LLP, Greenville, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Derrick Mosby pled guilty pursuant to a plea agreement to

possession with intent to distribute 51.1 grams of cocaine base, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2000). The district

court sentenced Mosby to 186 months’ imprisonment, below the 210 to

262 month sentencing guidelines range.          Finding no error, we

affirm.

           Mosby’s counsel filed a brief pursuant to Anders v.

California,   386   U.S.   738   (1967),   contending    there   exist   no

meritorious issues for appeal but seeking review of a two-level

enhancement to Mosby’s offense level for possession of a dangerous

weapon, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 2D1.1(b)(1) (2004).       Because Mosby did not object to this

sentencing enhancement in the district court, we review for plain

error.    See Fed. R. Crim. P. 52(b); see also United States v.

Olano, 507 U.S. 725, 733-37 (1993).

           We conclude there was no plain error.        The § 2D1.1(b)(1)

enhancement was based on Mosby’s possession of a shotgun during a

drug transaction with a confidential informant and uncover officer.

Although this incident formed the basis to a charge against Mosby

that was dismissed pursuant to his plea agreement, it was properly

considered by the district court pursuant to the court’s mandate to

consider the broad context of a defendant’s relevant conduct.            See

United States v. Watts, 519 U.S. 148, 152 (1997); see also United


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States v. Williams, 880 F.2d 804, 805 (4th Cir. 1989) (holding

conduct charged in dismissed counts may be considered in the

sentence calculation if it qualifies as relevant conduct under USSG

§ 1B1.3).

            Mosby filed a pro se supplemental brief, raising several

issues.     First, Mosby claims his guilty plea was invalid for the

district court’s alleged failure to advise him of his right against

self-incrimination and because his counsel purportedly entered his

guilty plea for him.        Because Mosby did not move in the district

court to withdraw his guilty plea, his challenge to the adequacy of

the Rule 11 hearing is reviewed for plain error.                    See United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).              Based on a

thorough review of the materials before the court, including the

guilty plea transcript, we find no plain error in the district

court’s guilty plea hearing.

            Next,   Mosby    contends   the   district      court   improperly

applied criminal history points to his state court misdemeanor

convictions for disorderly conduct and possession of a controlled

dangerous substance, because he received probation before judgment

in both instances.    This contention is meritless.          The presentence

report    indicates   Mosby    was   found    guilty   of    both    offenses.

Therefore, both judicial proceedings are counted as sentences under

USSG § 4A1.1(c), even if the convictions were not formally entered.

See USSG § 4A1.2(f).


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          Mosby also asserts the district court failed to conduct

a sufficient review of the 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2006) factors prior to imposing sentence.    After United States v.

Booker, 543 U.S. 220 (2005), this court reviews a sentence “for

unreasonableness.”    Booker, 543 U.S. at 261; United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). District courts must

calculate the appropriate guideline range, consider the range in

conjunction with other relevant factors under the guidelines and §

3553(a), and impose a sentence.    United States v. Green, 436 F.3d

449, 455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).

However, a district court need not “robotically tick through

§ 3553(a)’s every subsection.”    United States v. Johnson, 445 F.3d

339, 345 (4th Cir. 2006).   We find no error in the district court’s

sentencing hearing.

          Finally, Mosby alleges he received ineffective assistance

of counsel from both his trial and appellate attorneys. Generally,

claims of ineffective assistance of counsel must be brought in a

collateral proceeding under 28 U.S.C. § 2255 (2000), unless it

conclusively appears from the face of the record that counsel was

ineffective. United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir.), cert. denied, 126 S. Ct.    1407 (2006).   Because the alleged

instances of ineffective assistance do not conclusively appear on

the face of the record, we conclude these claims are not cognizable

on direct appeal.


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            In accordance with Anders, we have reviewed the entire

record    for   any    meritorious      issues      and     have    found     none.

Accordingly, we affirm Mosby’s conviction and sentence. 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




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