                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4582


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CARLOS LAMONT WILLIAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00056-WO-1)


Submitted:   May 31, 2011                     Decided:   June 6, 2011


Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henry C. Su, HOWREY LLP, East       Palo Alto, California, for
Appellant.    Ripley Rand, United   States Attorney, Randall S.
Galyon, Assistant United States     Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Carlos Lamont Williams pled guilty to possession with

intent     to        distribute       1,152.3            grams     of      N-Benzylpiperazine

(“BZP”),    in        violation       of       21       U.S.C.     § 841(a)(1),        (b)(1)(C)

(2006), and possession of a firearm by a convicted felon, in

violation       of     18    U.S.C.     §§ 922(g)(1),             924(a)(2)      (2006).       He

received a 110-month sentence.                          On appeal, Williams argues his

sentence    was        procedurally        unreasonable                because   his   advisory

Guidelines range was not properly calculated.                                 Specifically, he

maintains       that    the     Guidelines          range        for    BZP   was   erroneously

premised        on     BZP      being      a        3,4-Methylenedioxymethamphetamine

(“MDMA”) Mimic Drug and a Controlled Substance Analogue.                                       In

fact, he claims recent case law and notices from the DEA suggest

that the most closely related controlled substance to BZP would

be amphetamine, but much less potent.                           Next, Williams argues his

sentence    was        procedurally        unreasonable                because   the   district

court failed to explain its reasons for denying his motion for a

downward    variance.            Last,     although         Williams          acknowledges     the

district court overruled his objection to a firearm enhancement

as moot, he raises it to preserve his objection.                               We affirm.

            A        sentence    is     reviewed          for    reasonableness        under   an

abuse of discretion standard.                       Gall v. United States, 552 U.S.

38, 51 (2007).              This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                                     Id.;

                                                    2
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                      A

sentence imposed within the properly calculated Guidelines range

is presumed reasonable by this court.                United States v. Mendoza-

Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).                 In determining the

procedural reasonableness of a sentence, this court considers

whether the district court properly calculated the defendant’s

Guidelines range, treated the Guidelines as advisory, considered

the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments

presented     by   the    parties,      and       sufficiently    explained      the

selected sentence.       Gall, 552 U.S. at 51.

             Williams    first   argues       the   district     court   erred    in

relying on the presentence report (“PSR”), which converted BZP

to MDMA for purposes of establishing a Guidelines range.                          As

noted   by   the   Government     and    conceded      by   Williams,    Williams

initially    raised     this   claim    in    a    sentencing    memorandum,     but

withdrew the objection at sentencing.                   The Government posits

that this claim is waived in light of the withdrawal of the

objection.     Williams counters that he is entitled to plain error

review for two reasons.          First, he claims he was “pressured to

go along with his counsel’s decision to withdraw the objection

during sentencing.”       Second, he maintains his counsel “failed to

render effective assistance with respect to the development and

presentation of this objection” and therefore he “should not be

bound by his counsel’s decision to withdraw the objection.”

                                         3
              Generally,          unpreserved         errors     in    sentencing     are

reviewed for plain error.                  See Fed. R. Crim. P. 52(b); United

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

defendant may waive appellate review of a sentencing error if he

raises and then knowingly withdraws an objection to the error

before the district court.                  See United States v. Horsfall, 552

F.3d   1275,       1283     (11th    Cir.       2008)   (finding      that   defendant’s

withdrawal       of     objection         to     sentence      enhancement     precluded

appellate review of enhancement); United States v. Rodriguez,

311 F.3d 435, 437 (1st Cir. 2002) (“A party who identifies an

issue,     and     then      explicitly         withdraws      it,     has   waived   the

issue.”); see also United States v. Chapman, 209 F. App’x 253,

268 n.4 (4th Cir. 2006) (No. 04-5010) (noting that “withdrawal

of [an] objection amounts to a waiver of any complaint . . . ,

precluding us from considering the issue even under plain error

review”) (argued but unpublished).                      An appellant is precluded

from challenging a waived issue on appeal.                           See Rodriguez, 311

F.3d at 437.          Such a waiver is distinguishable “from a situation

in which a party fails to make a timely assertion of a right —

what courts typically call a ‘forfeiture,’” id. (quoting Olano,

507 U.S. at 733), which, as noted above, may be reviewed on

appeal for plain error.             See Olano, 507 U.S. at 733-34.

              Here,       the    record     reflects      that    Williams     initially

objected      to      the       probation        officer’s      calculation     of    his

                                                 4
Guidelines range based on BZP being treated as an MDMA analog.

However,     during      sentencing,     Williams   withdrew     his   objection.

Therefore, it is clear that Williams has waived this issue, and

this Court is precluded from considering it on appeal.

             Williams argues that he was essentially pressured into

agreeing to the withdrawal of the objection and that counsel was

ineffective in developing the BZP/MDMA conversion objection and

in choosing to withdraw it.               Claims of ineffective assistance

generally are not cognizable on direct appeal.                 United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997).                Rather, to allow for

adequate development of the record, a defendant must bring his

claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion.                   Id.    An

exception     exists      where    the    record    conclusively       establishes

ineffective assistance.            United States v. Baldovinos, 434 F.3d

233, 239 (4th Cir. 2006).

             To    succeed    on   his    claim,    Williams   must     show    that

(1) trial counsel’s performance was constitutionally deficient

and    (2)        such     deficient      performance      was     prejudicial.

Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984).                      To

satisfy the performance prong, Williams must demonstrate that

trial counsel’s performance fell below an objective standard of

reasonableness under “prevailing professional norms.”                      Id. at

688.   The prejudice prong is satisfied if Williams demonstrates

that “there is a reasonable probability that, but for [trial]

                                          5
counsel’s unprofessional errors, the result of the proceeding

would have been different.”              Id. at 694.          We conclude there is

no ineffective assistance conclusively appearing on the record.

See United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991)

(an ineffective assistance of counsel claim is best raised in a

§ 2255     motion   so      that      counsel    can     be     “afforded      adequate

opportunity to explain the reasons surrounding the action of

inaction    to   which      [petitioner]        takes    exception”)         (internal

citations omitted).

            To the extent that Williams argues he was pressured

into    withdrawing      the       objection,   his     claim   is    belied    by    the

record.     Initially, Williams filed a pro se objection to the

BZP/MDMA conversion.               At sentencing, after counsel stated that

he was withdrawing the objection, Williams informed the court

that he was uncertain about the withdrawal.                     After the district

court    afforded     him      a    sixteen-minute       recess      to   confer     with

counsel, Williams informed the court that he had discussed the

issue with counsel, that he fully understood what was taking

place, and that he agreed with the withdrawal of the objection.

Under these circumstances, the record does not reflect undue

pressure.     To the extent that Williams argues counsel pressured

him into withdrawing the objection, this claim too is better

raised in a § 2255 motion, where the record may be more fully



                                           6
developed     to   reflect     the   communications              between      Williams    and

counsel.

              Williams     next    claims         his     sentence       is   procedurally

unreasonable       because     the    district           court    did     not    articulate

reasons for denying his motion for a downward variance to avoid

unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6)

(2006).        Because      Williams     requested           a    sentence       below   the

Guidelines range, his claim was properly preserved, and this

court reviews it for reasonableness under an abuse of discretion

standard,     reversing      “unless     .       .   .   the     error    was     harmless.”

Lynn,   592    F.3d   572    at   576,   578         (“By    drawing      arguments      from

§ 3553 for a sentence different than the one ultimately imposed,

an aggrieved party sufficiently alerts the district court of its

responsibility        to      render         an      individualized              explanation

addressing those arguments, and thus preserves its claim.”); cf.

United States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010)

(reviewing claim of procedural unreasonableness for plain error

because defendant did not argue for a sentence different from

the sentence that he received).

              At   sentencing,       Williams’           counsel    advised       that   the

court start at 100 months and then vary downward based on the

other   cases      involving      BZP.        After         reviewing      the    submitted

materials, the court stated it “really had a hard time comparing

things like criminal histories or nature and circumstances of

                                             7
the offense or all of the history and characteristics of the

defendant.”       It further explained that, while the BZP cases from

other districts “may be some help in terms of evaluating the

seriousness of the offense, there are a lot of gaps in there

that make it difficult to do a direct comparison between the

sentences that are imposed.”                 Ultimately, the court denied the

variance,       finding    the    use   of       the    Guidelines      calculation     as

calculated was appropriate.                 We conclude the district court’s

explanation was sufficient.                 This court does not evaluate the

adequacy of the district court’s explanation “in a vacuum,” but

also       considers    “[t]he    context     surrounding         a   district      court’s

explanation.”          United States v. Montes-Pineda, 445 F.3d 375, 381

(4th Cir. 2006).

               Accordingly,       we    affirm         Williams’       sentence. *       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


       *
       Because Williams waived his argument as to the district
court’s calculation of the Guidelines range based on count two,
we conclude Williams’ argument pertaining to the firearm
enhancement imposed under the offense level computation for
count four is moot.     See United States Sentencing Guidelines
Manual § 3D1.3(a) (2009) (instructing that the count producing
the highest adjusted offense level in the group is used to
determine the Guideline calculations for the group).



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