                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4156



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


KIRBY LOREN AMLEE,

                Defendant - Appellant.



                            No. 08-4157



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


KIRBY LOREN AMLEE,

                Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00376-NCT-1; 1:06-cr-00424-NCT-1)


Submitted:   September 29, 2008          Decided:   December 31, 2008
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory Davis, Assistant Federal Public Defender, Winston-Salem,
North Carolina, for Appellant.   Michael Francis Joseph, Angela
Hewlett Miller, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Kirby Loren Amlee pled guilty, pursuant to a written plea

agreement, to two counts of possession of firearms in commerce

after having been dishonorably discharged from the Armed Forces, in

violation of 18 U.S.C. §§ 922(g)(6), 924(a)(2) (2000), and was

sentenced to 46 months imprisonment.      Amlee’s counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that, in his view, there are no meritorious issues for

appeal,   but   questioning   whether   the   district   court   erred   in

sentencing Amlee.     Amlee has filed a supplemental pro se brief

addressing these issues and asserting that he received ineffective

assistance of counsel.    Finding no error, we affirm.

            Because Amlee did not move in the district court to

withdraw his guilty plea, any challenge to the propriety of the

Fed. R. Crim. P. 11 hearing is reviewed for plain error.           United

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

accepting a plea, the district court must ensure that the defendant

understands the nature of the charges against him, the mandatory

minimum and maximum sentences, and various other rights, so it is

clear the defendant is knowingly and voluntarily entering his plea.

The court also must determine whether there is a factual basis for

the plea.     Fed. R. Crim. P. 11(b); United States v. DeFusco, 949

F.2d 114, 116 (4th Cir. 1991). Our review of the plea hearing

transcript reveals that the district court conducted a thorough


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Rule 11 colloquy, ensuring that Amlee’s plea was knowing and

voluntary and that there was an independent factual basis for the

plea.

            This court reviews the sentence imposed by the district

court for reasonableness, applying an abuse of discretion standard.

Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                             When

sentencing    a    defendant,   a   district       court   must:    (1)    properly

calculate    the    guideline   range;      (2)    treat   the     guidelines      as

advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2008); and (4) explain its reasons for selecting

a sentence.       Pauley, 511 F.3d at 473.         We presume that a sentence

within the properly calculated sentencing guidelines range is

reasonable.       United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69

(2007)   (upholding      application       of     rebuttable     presumption       of

correctness of within-guideline sentence).                 Here, the district

court followed the appropriate procedures in sentencing Amlee, and

we find no abuse of discretion in its imposition of the 46-month

sentence.    We therefore find that Amlee’s sentence is reasonable.

            Amlee contends that the district court erred by failing

to downwardly depart from the guideline range pursuant to U.S.

Sentencing    Guidelines    Manual     §    5K1.13    (2007),      based    on    his

diminished capacity.       This ruling is not reviewable unless the


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district court was under the mistaken impression that it lacked the

authority to depart.           United States v. Brewer, 520 F.3d 367, 371

(4th    Cir.    2008)    (no    authority       to   review     denial   of    downward

departure, even after Booker); see also United States v. Cooper,

437 F.3d 324, 333 (3d Cir. 2006) (collecting cases declining to

review a district court’s decision not to depart, even after

Booker). Here, the district court clearly understood its authority

to depart; therefore, this claim is not cognizable on appeal.

               Amlee also asserts a challenge to the effectiveness of

his trial attorney.            Claims of ineffective assistance of counsel

are not cognizable on direct appeal unless the record conclusively

establishes ineffective assistance.                  United States v. Richardson,

195    F.3d    192,   198     (4th   Cir.   1999).         To   allow    for   adequate

development      of     the    record,    claims      of   ineffective     assistance

generally should be brought in a 28 U.S.C. § 2255 (2000) motion.

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

that    the    record    does    not     conclusively       establish     ineffective

assistance.

               In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                           We

therefore affirm Amlee’s convictions and sentence.                         This court

requires that counsel inform Amlee, in writing, of his right to

petition the Supreme Court of the United States for further review.

If Amlee requests that a petition be filed, but counsel believes


                                            5
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 Amlee.      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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