                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4110



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ANTHONY BLACKWOOD,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Shelby. Lacy H. Thornburg, District
Judge. (CR-96-53)


Submitted:   August 3, 2005            Decided:   September 16, 2005


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Tony E. Rollman, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Thomas R. Ascik,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Anthony Blackwood was convicted by a jury in June 1997 of

one count of conspiracy to manufacture, distribute, and possess

with intent to distribute cocaine and cocaine base (crack), in

violation of 21 U.S.C. § 846 (2000), and sentenced to 240 months

imprisonment.     Blackwood noted a timely appeal but, because the

transcript of his sentencing hearing was lost, this court granted

Blackwood’s motion to remand for resentencing.          In January 2004,

the district court held a new sentencing hearing and resentenced

Blackwood to 240 months imprisonment but granted the Government’s

Fed. R. Crim. P. 35 motion, resulting in a 180-month sentence.

Blackwood has noted a timely appeal.

             Blackwood’s attorney filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), addressing whether the

district court improperly applied a two-level enhancement for

obstruction of justice, U.S. Sentencing Guidelines Manual § 3C1.1

(2000).   We granted counsel’s motion to file a supplemental brief

addressing    whether   the   enhancement   violated   United   States   v.

Booker, 125 S. Ct. 738 (2005).      Blackwood has filed a supplemental

pro se brief in which he also claims that:       (1) the district court

erred in applying the two-level enhancement for his role in the

offense, USSG § 3B1.1 (2000); (2) the prosecutor made improper

remarks during opening and closing arguments; and (3) he was denied

effective assistance of counsel at resentencing.         For the reasons


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that follow, we affirm Blackwood’s conviction but vacate his

sentence and remand for resentencing.

           At sentencing, and over his objection, Blackwood received

a two-level enhancement for his role in the offense, pursuant to

USSG § 3B1.1(c). Blackwood also received a two-level enhancement

for obstruction of justice, USSG § 3C1.1, based on the district

court’s finding that Blackwood testified falsely that he was

mistreated, coerced, and threatened by law enforcement personnel.

Blackwood’s base offense level was determined to be 34.1         After

applying   the   two,   two-level   enhancements   referenced   above,

Blackwood’s total offense level was 38; with a criminal history

category of I, the resulting guidelines range was 235-293 months

imprisonment.    Without those enhancements, the applicable range

would have been 151-188 months imprisonment.

           Blackwood claims, in his supplemental briefs, that the

enhancements he received for his role in the offense and for

obstruction of justice violated the decision announced by the

Supreme Court in Booker.      Because Blackwood did not raise this

issue at sentencing, his argument is reviewed for plain error.

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing

United States v. Olano, 507 U.S. 725, 731-32 (1993)).




     1
      Blackwood does not challenge the quantity of drugs used to
determine his base offense level of 34.

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             The Supreme Court held in Booker, 125 S. Ct. at 746, 750,

that   the    mandatory       manner   in   which    the    federal      sentencing

guidelines required courts to impose sentencing enhancements based

on facts found by the court by a preponderance of the evidence

violated     the     Sixth     Amendment.          The     Court     remedied    the

constitutional violation by severing two statutory provisions, 18

U.S.C. § 3553(b)(1) (2000) (requiring courts to impose a sentence

within the applicable guideline range), and 18 U.S.C. § 3742(e)

(2000) (setting forth appellate standards of review for guideline

issues), thereby making the guidelines advisory.                   Hughes, 401 F.3d

at 546 (citing Booker, 125 S. Ct. at 756-57).

             After   Booker,     courts     must   calculate       the   appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C. § 3553(a), and

impose a sentence.      If a district court imposes a sentence outside

the guideline range, the court must state its reasons for doing so.

Id. This remedial scheme applies to any sentence imposed under the

mandatory guidelines, regardless of whether or not the sentence

violates the Sixth Amendment.            Id. at 547. (citing Booker, 125 S.

Ct. at 769).

             In this case, the district court increased Blackwood’s

base offense level from 34 to 38 after finding, by a preponderance

of the evidence, that his conduct met the requirements of both

§§   3B1.1    and    3C1.1.       With    these    enhancements,         Blackwood’s


                                         - 4 -
sentencing range increased from 151-188 months to 235-293 months.

Accordingly, because the enhancement occurred under a mandatory

guidelines scheme, the district court committed plain error that

warrants correction.         Hughes, 401 F.3d at 547-56.2       Therefore, we

vacate Blackwood’s sentence and remand for resentencing.

            Blackwood also claims in his supplemental pro se brief

that the prosecutor made improper comments during opening and

closing arguments. Because the transcript of Blackwood’s trial does

not include the attorneys’ opening or closing arguments, we have

assumed that Blackwood’s characterization of those comments is

accurate.   According to Blackwood, the prosecutor stated that: (1)

“there is a habitual drug dealer in this courtroom today,” (2)

Blackwood “presents greater danger to the public and/or is more

likely to strike repeatedly,” (3) Blackwood was charged with drug

offenses in other states, (4) Blackwood’s actions were “vicious,”

and (5) Blackwood was a deportable alien.          Also, Blackwood claims

that the prosecutor “mischaracterized Blackwood’s description of

his experience in the hands of the police as utterly wicked.”

            A   claim   of    prosecutorial   misconduct   is    reviewed   to

determine whether the conduct complained of so infected the trial


     2
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Blackwood’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

                                    - 5 -
with unfairness as to make the resulting conviction a denial of due

process.     United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.

2002).     To prevail under this standard, Blackwood must show that

“the prosecutor’s remarks or conduct were improper and, second

. . . that such remarks or conduct prejudicially affected his

substantial rights” so as to deprive him of a fair trial.                            Id.

Whether prejudice exists is in turn established by the following:

(1) the degree to which the prosecutor’s remarks had a tendency to

mislead    the   jury;    (2)    whether      the   remarks    were      isolated    or

extensive; (3) the strength of competent proof introduced to

establish defendant’s guilt; (4) whether the prosecutor’s remarks

were invited by the improper conduct of defense counsel; and (6)

whether curative instructions were given.                   Id. at 186.        No one

factor is dispositive.          United States v. Wilson, 135 F.3d 291, 299

(4th Cir. 1998).

            Because Blackwood’s claims were not preserved at trial,

the standard is modified to the degree that he must demonstrate

plain error.      Olano, 507 U.S. at 732-34.            We find that Blackwood

cannot establish error, let alone plain error.                     Even assuming the

accuracy of Blackwood’s description of the statements made by the

prosecutor,      none    of     the   comments      alone     or    in    combination

established      the    requisite     level    of   prejudice.           According    to

Blackwood, the statements were isolated comments made only in

closing and/or opening arguments.              The court properly instructed


                                       - 6 -
the jury to consider as evidence only the testimony of witnesses

who were called to testify and the exhibits which were admitted

into evidence. The jury is presumed to follow the instructions

provided them.       United States v. Francisco, 35 F.3d 116, 119 (4th

Cir. 1994).     Moreover, “it is undisputed that closing argument is

not merely a time for recitation of uncontroverted facts, but

rather the prosecution may make fair inferences from the evidence.”

Id. at 120.     See also United States v. Brainard, 690 F.2d 1117,

1122 (4th Cir. 1982) (stating that closing arguments may include

reasonable inferences from the evidence).                 Accordingly, Blackwood

cannot show prosecutorial misconduct.

             Blackwood     also    argues   that     he   was   denied      effective

assistance     of    counsel      during    his    resentencing       and     appeal.

Ineffective assistance claims are not generally addressed on direct

appeal unless it appears conclusively from the record that the

appellant received ineffective assistance of counsel.                          United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                      Because

the    record       does    not      conclusively         establish         counsel’s

ineffectiveness,      we   conclude    that       Blackwood’s    claims      must   be

brought, if at all, in a proceeding under 28 U.S.C. § 2255 (2000).

             As required by Anders, we have reviewed the entire record

and   have   found    no   other    meritorious      issues     for   appeal.       We

therefore affirm Blackwood’s conviction; we vacate his sentence and




                                      - 7 -
remand for resentencing consistent with Booker and Hughes.3     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 IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




     3
      We grant the Government’s unopposed motion to remand.     We
deny Blackwood’s motion to withdraw the Anders brief.

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