                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5083



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


THOMAS WILLIAM FIELDER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-02-152)


Submitted:   January 12, 2007          Decided:     February 20, 2007


Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Douglas Scott Broyles,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Thomas William Fielder pleaded guilty, pursuant to a plea

agreement, to one count of conspiracy to possess with intent to

distribute and to distribute five kilograms or more of cocaine and

fifty grams or more of crack cocaine within 1000 feet of a school

or playground, in violation of 21 U.S.C. §§ 841(a)(1), 846, 860

(2000) (Count One); and one count of using and carrying a firearm

during and in relation to a drug trafficking crime and possessing

a firearm in furtherance of such crime, in violation of 18 U.S.C.

§ 924(c) (2000) (Count Eleven).       The plea agreement included

stipulations related to the determination of Fielder’s sentence

that included the quantity of crack cocaine attributable to Fielder

and the validity of a specific prior felony drug conviction.

          In determining the sentencing range for Count One, the

probation officer recommended a base offense level of thirty-six

pursuant to U.S. Sentencing Guideline Manual (USSG) § 2D1.1(c)(2)

(2002), based on the plea agreement stipulation of drug quantity.

This was enhanced by two levels pursuant to USSG § 2D1.2(a)(1)

because the drugs were stored, possessed, and/or distributed within

1000 feet of a protected location.    After a three-level reduction

for acceptance of responsibility, Fielder’s total offense level was

thirty-five. Fielder’s prior criminal record and the fact that the

instant offenses were committed while Fielder was under a criminal

justice sentence for a prior conviction resulted in the assessment


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of six points, placing him in criminal history category III.          The

resulting sentencing range for Count One was 210 to 262 months, but

because the statutory minimum was twenty years, the Guideline range

was 240 to 262 months, plus a mandatory consecutive five years on

Count Eleven.      Fielder did not object to the presentence report

(PSR).

           Prior to sentencing, the Government moved for a downward

departure from both the Guideline range and the statutory minimum

pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e) (2000), based on

Fielder’s substantial assistance to the Government. The Government

requested a total sentence of 240 months.           At sentencing, the

district   court    adopted   the    factual   findings   and   Guideline

calculations in the PSR, granted the Government’s departure motion,

and sentenced Fielder to 240 months of imprisonment, ten years of

supervised release, and a $200 special assessment.          Fielder now

appeals.

           On appeal, counsel filed an Anders brief, in which he

states there are no meritorious issues for appeal, but questions

whether Fielder’s trial counsel was ineffective in allowing him to

enter into a plea agreement in which he admitted a prior conviction

that was not listed in the PSR.        In a pro se supplemental brief,

Fielder repeats the argument raised by counsel, and asserts other

claims of ineffective assistance of counsel and sentencing error.




                                    - 3 -
            Counsel suggests that trial counsel was ineffective in

that he “should have investigated [Fielder’s] criminal record and

should have advised him not to admit the prior conviction which he

admitted in his plea agreement.”          In his pro se brief, Fielder

likewise asserts counsel was ineffective in failing to investigate

the validity of the prior conviction listed in the plea agreement.

An allegation of ineffective assistance should not proceed on

direct appeal unless it appears conclusively from the record that

counsel’s     performance   was   ineffective.      United   States   v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).       Our review of the

record leads us to conclude that deficient performance is not

conclusively shown, and Fielder is not entitled to any relief on

this claim.

            In accordance with Anders, we have reviewed the record in

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

considered the arguments asserted in Fielder’s pro se supplemental

brief and find them to be without merit.           We therefore affirm

Fielder’s conviction and sentence.*          This court requires that

counsel inform Fielder, in writing, of the right to petition the

Supreme Court of the United States for further review.       If Fielder

requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court


     *
      We have reviewed the district court’s determination of
Fielder’s sentence and conclude that Fielder is not entitled to any
relief based on United States v. Booker, 543 U.S. 220 (2005).

                                  - 4 -
for leave to withdraw from representation.   Counsel’s motion must

state that a copy thereof was served on Fielder.

          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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