                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4557


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JAMIE M. HARGROVE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00249-F-1)


Submitted:   April 26, 2013                    Decided:   May 2, 2013


Before WILKINSON and    NIEMEYER,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Jamie    M.   Hargrove     appeals    from       his      convictions     and

210-month        sentence     imposed     pursuant        to    his    guilty      plea   to

selling     a    firearm      and    ammunition      to    a     convicted      felon     and

possession of a firearm and ammunition by a convicted felon.                              On

appeal, Hargrove challenges the factual basis for his plea, the

sufficiency of the reasoning given by the district court for his

sentence,       and     the   effective     assistance         of   his     counsel.      We

affirm.

                                            I.

                Hargrove first argues that the district court erred in

failing to establish a factual basis, in particular with regard

to whether Hargrove and the buyer of the firearm were convicted

felons. 1       Because Hargrove did not move in the district court to

withdraw his guilty plea, our review is for plain error.                            United

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

establish plain error, Hargrove “must show: (1) an error was

made;    (2)      the    error      is   plain;   and      (3)      the    error    affects


     1
       Hargrove raises these claims as two separate issues on
appeal: (1) whether the factual basis was established and
(2) whether the court established sufficient facts regarding the
felon status of Hargrove and the buyer to sustain a conviction.
Specifically, on the second issue, Hargrove asserts that the
lack of a factual basis makes it impossible to determine whether
the convictions at issue complied with United States v. Simmons,
649 F.3d 237 (4th Cir. 2011).



                                             2
substantial rights.”           United States v. Massenburg, 564 F.3d 337,

342-43 (4th Cir. 2009).           “The decision to correct the error lies

within our discretion, and we exercise that discretion only if

the error seriously affects the fairness, integrity or public

reputation       of   judicial    proceedings.”        Id.   at    343   (internal

quotation marks omitted).

            Here,      even    assuming   that    there   was     an   insufficient

factual basis for Hargrove’s plea constituting plain error, we

conclude    that      Hargrove    still   fails   to   establish       plain   error

because he has not shown that the error affected his substantial

rights.      In the guilty plea context, a defendant meets this

burden by showing that, but for the error, he would not have

entered    his    guilty      plea.   Id.     Hargrove,      however,     does   not

suggest that he would not have pled guilty but for the district

court’s error. 2         Moreover, Hargrove does not assert that the

Government could not provide a factual basis for each element

and fails to provide any evidence or argument that a factual

basis did not exist. 3           Because Hargrove does not show that his



     2
       In fact, even on appeal, Hargrove does not seek to stand
trial.   Instead, he requests that he be allowed to replead and
be resentenced.
     3
       While citing Simmons, Hargrove makes no attempt to show
that his convictions are not felonies, that the buyer was not a
felon, or that any of the other elements are unsupported by
facts.



                                          3
substantial rights have been affected, he fails to show plain

error.

                                     II.

           Hargrove avers that his 210-month sentence was above

the advisory Guidelines range and that the court did not provide

sufficient reasoning for the departure.                Hargrove’s Guidelines

range was 120 months; however, absent the 120-month statutory

maximum applicable to both counts, the Guidelines range would

have been 168 to 210 months.         Thus, the district court imposed

consecutive sentences totaling the 210-month Guideline sentence

determined to be appropriate: 120 months on the sales charge and

90 months on the possession charge. 4

           This methodology is not only permitted but required by

the   Guidelines.     If   the   total     punishment    calculated   by    the

Guidelines exceeds the highest statutory maximum, the district

court “shall” impose consecutive terms of imprisonment to the

extent    necessary   to   achieve       the   total    punishment.        U.S.

Sentencing Guidelines Manual § 5G1.2(d) (2011).               Moreover, the

district court is not prevented from stacking sentences when the

counts, as here, have been grouped.            See United States v. Chase,


      4
       Hargrove avers that he received a 220-month sentence and,
therefore,   was  above   the  Guidelines   range   even  if  the
consecutive sentences were appropriate.       However, Hargrove’s
allegations seems to be based on an arithmetic error.



                                      4
296 F.3d 247, 250-51 (4th Cir. 2002).                         Accordingly, the district

court    did     not     err     in    imposing          consecutive         sentences,         and

Hargrove’s       total     sentence,         which       was    within       the    Guidelines

range, is presumptively reasonable on appeal.                                Rita v. United

States, 551 U.S. 338, 347 (2007).

               Turning    to     Hargrove’s            assertions     that        the    district

court    did     not     provide      sufficient          reasoning         for    the     chosen

sentence, we conclude that Hargrove is mistaken.                                    A district

court “must make an individualized assessment” and “must apply

the   relevant     [18     U.S.C.]       §    3553(a)         [(2006)]      factors       to    the

specific circumstances of the case.”                           United States v. Carter,

564     F.3d    325,      328     (4th       Cir.       2009).         However,          when     a

within-Guidelines          sentence          is       imposed,       the     “individualized

assessment      need     not     be    elaborate         or     lengthy,”         id.    at    330,

“because       guidelines       sentences             themselves      are     in    many       ways

tailored to the individual and reflect approximately two decades

of    close     attention        to    federal          sentencing          policy,”       United

States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009) (internal

quotation marks omitted).

               At sentencing in the instant case, the district court

heard     argument       from      both      parties           and    specifically            noted

Hargrove’s      lengthy,        serious,      and       violent      criminal      background.

The     court     recognized          that        Hargrove’s         repeated       assaultive

behavior coupled with his propensity to carry firearms “creates

                                                  5
a dangerous environment for any community in which Mr. Hargrove

will be living.”          The court also noted that previous sanctions

had failed to deter Hargrove.                The court adopted the findings in

the     presentence       report     and    explicitly        stated       that    it    had

considered      those     findings     as    well    as   the   § 3553(a)          factors.

While    the    court     may   have     been      uncertain    as    to    whether      the

imposed sentence was technically considered a departure or a

within-Guidelines          sentence,        the      court     provided       sufficient

reasoning to support either and clearly reached a considered

decision that 210 months was the appropriate sentence.                            Thus, we

find that Hargrove’s sentence was both within the Guidelines

range and reasonable.

                                            III.

               Finally,     Hargrove        claims     that     his        attorney      was

ineffective during plea negotiations, at his plea hearing, and

at sentencing.          However, claims of ineffective assistance of

counsel are not cognizable on direct appeal unless the record

clearly     demonstrates           ineffectiveness.             United        States      v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“[I]t is well

settled that a claim of ineffective assistance should be raised

in a 28 U.S.C. § 2255 motion in the district court rather than

on    direct      appeal,       unless      the      record     conclusively            shows

ineffective      assistance.”)         (internal      quotation       marks       omitted).

                                             6
Because our review of the record discloses that there is no

conclusive    evidence    of   ineffective   assistance,    we   decline   to

consider this claim at this time.

          Based      on    the    foregoing,    we    affirm       Hargrove’s

convictions    and   sentence.      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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