                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-5019


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MAURICE SYLVESTER BAILEY, a/k/a “Big Mo”,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00145-NCT-1)


Submitted:   May 24, 2013                     Decided:   June 6, 2013


Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant. Andrew Charles Cochran, OFFICE OF THE
UNITED   STATES  ATTORNEY, Greensboro,  North   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Maurice Sylvester Bailey pleaded guilty, pursuant to a

written plea agreement, to possession with intent to distribute

35.2     grams       of     cocaine     base,        in    violation        of    21   U.S.C.

§ 841(a)(1),         (b)(1)(B)      (2006).          The   district     court      sentenced

Bailey    to     108      months’    imprisonment.             On   appeal,      counsel   has

filed a brief pursuant to Anders v. California, 386 U.S. 738

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

appeal, but questioning the validity of Bailey’s guilty plea,

whether the search of Bailey’s residence violated the Fourth

Amendment, whether the district court abused its discretion by

imposing an unreasonable sentence, and whether Bailey’s trial

counsel was ineffective.                  Bailey’s pro se supplemental brief

raises a number of Fourth, Fifth, and Sixth Amendment claims.

The Government declined to file a responsive brief.                              Following a

careful review of the record, we affirm.

               Because Bailey did not move in the district court to

withdraw his guilty plea, we review the Federal Rule of Criminal

Procedure       11     hearing      for      plain    error.          United      States    v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002).                           To prevail under

this standard, Bailey must establish that an error occurred, was

plain, and affected his substantial rights.                            United States v.

Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).                             Our review of

the    record     establishes         that    the    district       court     substantially

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complied    with   Rule    11’s     requirements,      ensuring    that    Bailey’s

plea was knowing and voluntary.

            Counsel       also    questions         whether     Bailey’s      Fourth

Amendment rights were violated in the course of the search of

his residence.        Because Bailey entered an unconditional guilty

plea, this claim is waived.                  “When a criminal defendant has

solemnly admitted in open court that he is in fact guilty of the

offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty plea.”

Tollett v. Henderson, 411 U.S. 258, 267 (1973).                     The right to

challenge     on      appeal      a    Fourth       Amendment     issue       is      a

nonjurisdictional         defense      and     thus    is     forfeited       by     an

unconditional guilty plea.            Haring v. Prosise, 462 U.S. 306, 320

(1983).

            We review Bailey’s sentence under a deferential abuse-

of-discretion standard.           Gall v. United States, 552 U.S. 38, 51

(2007).      This     review      requires      consideration      of     both      the

procedural and substantive reasonableness of the sentence.                         Id.;

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                        After

determining whether the district court correctly calculated the

advisory    Guidelines     range,     we     must   decide    whether   the      court

considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the

arguments presented by the parties, and sufficiently explained

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the selected sentence.             Lynn, 592 F.3d at 575-76; United States

v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).

              Once we have determined that the sentence is free of

procedural error, we consider the substantive reasonableness of

the   sentence,      “tak[ing]       into       account   the      totality     of    the

circumstances.”           Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.

If the sentence is within the appropriate Guidelines range, we

apply a presumption on appeal that the sentence is reasonable.

United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.

2010).       Such a presumption is rebutted only if the defendant

demonstrates “that the sentence is unreasonable when measured

against the § 3553(a) factors.”                 United States v. Montes-Pineda,

445   F.3d    375,   379    (4th    Cir.    2006)      (internal    quotation        marks

omitted).

              The district court correctly calculated and considered

the advisory Guidelines range, and heard argument from counsel

and allocution from Bailey.             The court considered the § 3553(a)

factors and explained that the within-Guidelines sentence was

warranted in light of Bailey’s criminal history and continued

drug activity.        Further, neither counsel nor Bailey offers any

grounds      to   rebut    the   presumption      on    appeal     that   the   within-

Guidelines sentence of 108 months’ imprisonment is substantively

reasonable.        Accordingly, we conclude that the district court

did not abuse its discretion in sentencing Bailey.

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             Counsel        also       questions         whether     Bailey         received

ineffective assistance of trial counsel.                        Claims of ineffective

assistance of counsel are generally not cognizable on direct

appeal,     unless    the      record    conclusively           establishes        counsel’s

“objectively unreasonable performance” and resulting prejudice.

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).                              The

record      does   not     conclusively           establish      that      trial     counsel

rendered      ineffective          assistance       to     Bailey.          Bailey      must

therefore     bring      his    allegation        of     ineffective       assistance    of

counsel in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion, should

he wish to pursue such a claim.                   United States v. Baptiste, 596

F.3d 214, 216 n.1 (4th Cir. 2010).

             Bailey’s pro se supplemental brief raises a number of

constitutional claims relating to the officers’ search of his

residence and statements he made to law enforcement officers.

However,     as    noted       above,    Bailey        waived      these     claims    upon

knowingly and voluntarily entering an unconditional guilty plea.

             Finally, Bailey’s pro se supplemental brief challenges

the district court's reliance on facts outside of the indictment

to enhance his sentence based on drug quantity.                            Because Bailey

was   not     sentenced        above    the       applicable       statutory        maximum,

Bailey’s     constitutional         challenge       to    the    trial     court’s     fact-

finding is without merit.                See United States v. Benkahla, 530

F.3d 300, 312 (4th Cir. 2008) (“Sentencing judges may find facts

                                              5
relevant to determining a Guidelines range by a preponderance of

the evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.”); United States v. Young, 609 F.3d 348, 357

(4th Cir. 2010) (sentencing court is not “bound by the evidence

presented    at    trial    when   determining      drug   quantity     or   other

relevant conduct”).

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm the district court’s judgment. This

Court requires that counsel inform Bailey, in writing, of the

right to petition the Supreme Court of the United States for

further review.        If Bailey 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 Bailey.

            We dispense with oral argument because the facts and

legal    contentions      are    adequately   presented     in   the   materials

before    this    Court    and   argument   would   not    aid   the   decisional

process.

                                                                         AFFIRMED




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