                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4289


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

PATRICIA LEMLY ELLIOTT, a/k/a Patty Sandford Ferrara,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:03-cr-00027-LHT-4)


Submitted:    December 11, 2008            Decided:   December 15, 2008


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Carol Ann Bauer, Morganton, North Carolina, for Appellant. Adam
Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Patricia    Lemly       Elliott    pled     guilty    pursuant    to    a

written plea agreement to conspiracy to possess with intent to

distribute methamphetamine and marijuana and was sentenced to 72

months of imprisonment.              On appeal, counsel has filed a brief

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

there are no meritorious grounds for appeal, but raising the

following     issues:     (1)    whether       Elliott     received       ineffective

assistance     of    trial      counsel;       (2)     whether     the     Government

committed prosecutorial misconduct; and (3) whether Elliott was

erroneously sentenced.          For the reasons that follow, we affirm.

             Elliott’s     claims       that     she       received       ineffective

assistance at her plea and sentencing hearings are belied by the

record.        Moreover,        we     find     no      ineffective       assistance

conclusively appearing on the record, as required to establish

the claim on direct appeal.              United States v. James, 337 F.3d

387, 391 (4th Cir. 2003).

             Next,   Elliott     claims       that   the    prosecutor     committed

misconduct by telling her that if she did not pled guilty, the

Government would pursue a twenty-year sentence against her.                         We

note that a prosecutor is allowed to threaten a defendant with

increased punishment if a defendant refuses to accept a plea

agreement.     Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

Based   on    Elliott’s      prior     drug    felony      and    the    Government’s

                                          2
18 U.S.C.     § 851     (2006)     notice,         Elliott      was    eligible   for    a

twenty-year      minimum    sentence.             See    18     U.S.C.   § 841(b)(1)(A)

(2006).    Thus, this claim fails.

             Finally, we do not find that the district court abused

its discretion in sentencing Elliott. Gall v. United States, 128

S. Ct. 586, 596-97 (2007); United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007).               In particular, we find no error in

the calculation of her criminal history.                             See U.S Sentencing

Guidelines       Manual    § 4A1.1       comment.            (n.3)    (2003)   (counting

criminal     history      points      based       on    prior    sentences     occurring

within ten years of commencement of the instant offense).

            In accordance with Anders, we have reviewed the entire

record in this case, including the issues raised in Elliott’s

pro se supplemental brief, and have found no meritorious issues

for appeal.      Accordingly, we affirm the judgment of the district

court.     This court requires that counsel inform her client, in

writing,    of    her   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 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



                                              3
adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




                                    4
