                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4496


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

HASSAN SHABAZZ BERRY, a/k/a Dog,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00896-RBH-1)


Submitted:    March 27, 2009                  Decided:   May 1, 2009


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James P. Rogers, Assistant Federal Public Defender, Aileen P.
Clare,   Research  and  Writing   Specialist,  Columbia,  South
Carolina, for Appellant.    Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Hassan    Shabazz           Berry    appeals     his    conviction       and

168-month     sentence,       imposed        following      his     guilty     plea    to

possession    with     intent       to    distribute     500      grams   or   more    of

cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(B) (2006).

On appeal, Berry’s counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), concluding that there are no

meritorious     issues    for       appeal,       but   questioning       whether     the

district    court     erred    in    denying        Berry’s    motion     to   suppress

evidence, complied with Fed. R. Crim. P. 11 in accepting Berry’s

guilty plea, and imposed a reasonable sentence.                       Berry has also

filed a pro se supplemental brief.                 Finding no error, we affirm.

             First, with respect to the district court’s denial of

Berry’s motion to suppress evidence, Berry’s voluntary plea of

guilty      waived       his        right          to    challenge         antecedent,

nonjurisdictional errors.                See Tollett v. Henderson, 411 U.S.

258, 267 (1973). 1

             Turning to Berry’s guilty plea, in the absence of a

motion to withdraw a guilty plea, we review the adequacy of the

plea proceeding for plain error.                  United States v. Martinez, 277

F.3d 517, 525 (4th Cir. 2002).                   A review of Berry’s guilty plea

     1
       Berry’s guilty plea did not reserve the right to appeal
the denial of the motion to suppress.    See Fed. R. Crim. P.
11(a)(2).



                                             2
hearing reveals that the district court fully complied with the

requirements      of    Rule       11.        Berry’s   plea     was     knowingly,

voluntarily, and intelligently made, with full knowledge of its

consequences.     We therefore find that the district court did not

err in accepting Berry’s guilty plea.

            Counsel also challenges the reasonableness of Berry’s

sentence.     We review for abuse of discretion a district court’s

imposition of sentence.            Gall v. United States, 128 S. Ct. 586,

597 (2007); see also United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007).        We must first ensure that the district court

committed no procedural error, such as improperly calculating

the guideline range, considering the guidelines to be mandatory,

failing to consider the § 3553(a) factors, sentencing based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence.       Gall, 128 S. Ct. at 597.

            In the absence of procedural errors, we consider the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances, including any variance from

the guideline range.           Pauley, 511 F.3d at 473.            While we may

presume a sentence within the guideline range to be reasonable,

we   may    not   presume      a    sentence     outside   the     range      to   be

unreasonable.     Id.    Moreover, we give deference to the district

court’s decision that the § 3553(a) factors justify a variant

sentence    and   to   the   extent      of   that   variance.         Even   if   the

                                          3
reviewing court would have imposed a different sentence, this

fact alone is not sufficient to justify reversing the district

court.    Id. at 473-74.

              In   imposing     Berry’s       sentence,     the    district      court

correctly calculated the guideline range and considered both the

advisory nature of the guidelines and the § 3553(a) factors.

The court provided appropriate reasoning for its decision to

impose    a    variant    sentence      twenty     months     below       the   lowest

sentence in the guideline range.               Accordingly, we conclude that

Berry’s       sentence    is     both     procedurally       and      substantively

reasonable.

              In   his   pro   se   supplemental     brief,       Berry    reiterates

some of the issues presented by counsel.                  He also contends that

the Government breached the plea agreement by failing to file a

motion    for      substantial       assistance,     challenges           his   career

offender status, and alleges that his trial counsel rendered

ineffective assistance.             Our review of the record leads us to

conclude that these claims lack merit. 2




     2
       With respect to Berry’s ineffective assistance of counsel
claim, where, as here, the record does not conclusively
demonstrate ineffective assistance, such claims should be raised
in a 28 U.S.C.A. § 2255 (West Supp. 2008) motion rather than on
direct appeal.   See United States v. King, 119 F.3d 290, 295
(4th Cir. 1997).



                                          4
            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm Berry’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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