                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5146



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DONALD RAY GOODINE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-472)


Submitted:   June 9, 2006                     Decided:   July 5, 2006


Before TRAXLER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, P.A., Greensboro, North
Carolina, for Appellant. 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Unpublished opinions are not binding precedent in this circuit.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).
PER CURIAM:

            Donald   Ray   Goodine    appeals   his    jury   conviction    and

sentence on a charge of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000).1

The district court sentenced Goodine to 92 months’ imprisonment,

three years of supervised release, and ordered payment of a $100

statutory   assessment.2      Goodine’s      counsel    has   filed   a   brief

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

there are no meritorious grounds for appeal, but raising several

issues for consideration. Goodine was given an opportunity to file

a pro se brief, but has failed to do so.              Finding no reversible

error, we affirm.

            Goodine’s first issue on appeal is that his retrial

contravened the Double Jeopardy Clause of the Constitution.                  We

previously have thoroughly considered this claim in the context of

Goodine’s appeal from the district court’s post-trial ruling that

Goodine could be retried on the charge on which the jury was hung



     1
      Goodine was previously tried on a two-count indictment on
charges of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000). The trial resulted in
a hung jury on one charge and an acquittal on the other. This case
arises from the retrial on the charge on which the previous jury
was hung.
     2
      The probation officer calculated a sentencing guideline range
of 77 to 96 months’ imprisonment founded on a base offense level of
24, an adjusted offense level of 26 (after applying a two-level
enhancement for obstruction of justice), and a criminal history
category of IV.

                                     - 2 -
and a mistrial was declared.          United States v. Goodine, 400 F.3d

202 (2005).      In that appeal, we determined that there was no

constitutional impediment to retrying Goodine, as the indictment

was not multiplicitous.         Id.       As this claim already has been

determined adversely to Goodine, we decline to revisit it here.

See generally Davis v. United States, 417 U.S. 333, 342 (1974);

Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).

           Goodine next asserts that the trial court erred in

failing to instruct the jury on the defense of coercion and duress,

on the theory that he handled the firearm because his girlfriend

historically presented a threat to him.              We review for abuse of

discretion the district court’s decision whether to grant a request

for a particular jury instruction, see United States v. Abbas, 74

F.3d 506, 513 (4th Cir. 1996), and find no such abuse of discretion

in this instance.

           Goodine      next   contends     that    his   trial   counsel   was

ineffective for advising Goodine not to testify and for stipulating

to the interstate nexus of the firearm.                   Goodine’s claim 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   his   counsel   was

ineffective.     United States v. DeFusco, 949 F.2d 114, 120-21 (4th

Cir. 1991).      Because the record does not conclusively establish




                                      - 3 -
ineffective assistance of counsel, we decline to consider this

claim on direct appeal.

            Goodine’s     final     claim     is     that   his    sentence    is

unreasonable.    After the Supreme Court’s decision in United States

v. Booker, 543 U.S. 220 (2005), a sentencing court no longer is

bound by the range prescribed by the sentencing guidelines.                    See

United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).

However, in determining a sentence post-Booker, sentencing courts

still are required to calculate and consider the guideline range

prescribed thereby as well as the factors set forth in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2005).            Id.     We will affirm a post-

Booker sentence if it is both reasonable and within the statutorily

prescribed range.       Id.     We further have stated that “a sentence

imposed ‘within the properly calculated Guidelines range . . . is

presumptively reasonable.’”         United States v. Green, 436 F.3d 449,

457 (4th Cir.), cert. denied, ___ S. Ct. ___, 2006 WL 1057741 (U.S.

May 22, 2006).

            We find that the district court properly calculated the

guideline   range   and       appropriately    treated      the   guidelines    as

advisory.   The court sentenced Goodine only after considering the

factors set forth in § 3553(a).               Based on these factors, and

because the court sentenced Goodine within the applicable guideline

range and the statutory maximum, we find that Goodine’s sentence of

92 months’ imprisonment is reasonable.


                                     - 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 Goodine’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




                                    - 5 -
