                  Vacated by Supreme Court, June 21, 2010



                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 08-4055


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

RODNEY ANTON WILLIAMSON,

                    Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:06-cr-00474-NCT-1)


Submitted:    July 9, 2009                    Decided:   July 20, 2009


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. David James, SMITH JAMES ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant.      Anna Mills Wagoner, United
States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Rodney     Anton   Williamson     was    indicted,   along      with

others, and charged with one count of conspiracy to distribute

five kilograms or more of a mixture and substance containing a

detectable amount of cocaine, in violation of 21 U.S.C. § 846

(2006).   The sealed indictment was issued December 18, 2006, and

a warrant for Williamson’s arrest was issued the following day.

In January 2007, a confidential informant, acting in concert

with law enforcement agents, met with Williamson while wearing a

recording and transmitting device.           At the conclusion of the

meeting, law enforcement attempted to arrest Williamson on the

outstanding   warrant;    however,    he   successfully     evaded   arrest.

          Williamson was eventually apprehended and arraigned on

June 12, 2007, and received court-appointed counsel.                 However,

Williamson    retained   counsel     who   entered    his   appearance     the

following week.      Williamson’s case was called for jury selection

on August 13, 2007.      On that date, Williamson informed the court

that, during the preceding weekend, he had retained different

counsel and wanted his first retained attorney dismissed.                After

substitute retained counsel indicated that he was prepared to

try   Williamson’s    case   two   days    after     jury   selection,     the

district court granted Williamson’s motion to dismiss his first

retained counsel.



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               At the conclusion of his jury trial, Williamson was

convicted of the sole count in the indictment.                           Williamson was

subsequently sentenced to life imprisonment.

               On appeal, Williamson first claims the district court

erred     in    admitting     the    recording        of    his    meeting        with    the

confidential informant.              Williamson’s claim is raised for the

first time on appeal and is therefore reviewed for plain error.

Plain error requires Williamson to establish that: (1) there was

error; (2) the error was “plain;” and (3) the error affected his

substantial rights.           United States v. Olano, 507 U.S. 725, 732

(1993).        Even if he makes this showing, “Rule 52(b) leaves the

decision       to   correct    the     forfeited       error       within        the     sound

discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affect[s]

the     fairness,     integrity,       or     public       reputation       of     judicial

proceedings.”        Id. (quoting United States v. Young, 470 U.S. 1,

15 (1985) (internal quotations omitted)).                         Williamson fails to

establish that error occurred or that any error was “plain.”

               Williamson     argues    that,       because    a    sealed       indictment

had   been      issued   against       him,       introduction      of    his      recorded

conversation with an informant acting at the direction of law

enforcement officers violated his right to counsel under the

Sixth Amendment.         In support for his argument, Williamson relies

principally on Massiah v. United States, 377 U.S. 201 (1964),

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and Brewer v. Williams, 430 U.S. 387 (1986).                       Williamson cites

Brewer for the proposition that “[w]hatever else it may mean,

the   right    to    counsel    granted       by    the    Sixth    and   Fourteenth

Amendments means at least that a person is entitled to the help

of a lawyer at or after the time that judicial proceedings have

been initiated against him ‘whether by way of formal charge,

preliminary hearing, indictment, information, or arraignment’.”

Brewer, 430 U.S. at 398 (quoting Kirby v. Illinois, 406 U.S. 682

(1972)).

            However,     Williamson’s         selective     quotation     of   Brewer

fails to support his position.                 The State in Brewer did not

contest the fact that judicial proceedings had begun against the

defendant when he was questioned by the police without counsel

present.      Brewer, 430 U.S. at 399.               Therefore, the question of

precisely     when   judicial    proceedings         are    instituted    against   a

defendant was not before the Court.                   See Michigan v. Jackson,

475 U.S. 625, 629 (1986) (stating that the arraignment signals

the initiation of adversary judicial proceedings and thus the

attachment of the Sixth Amendment right to the assistance of

counsel) (internal quotations omitted).                     Moreover, Brewer and

Massiah     are     factually   distinct           from    Williamson’s    case     as

officers in both cases interrogated the defendants after their

respective arraignments.          Brewer, 430 U.S. at 390-92; Massiah,

377 U.S. at 202.

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           In contrast, at the time of Williamson’s conversation

with the informant, all that had occurred was the issuance of a

sealed indictment and arrest warrant.              This court has held that

the Sixth Amendment right to counsel does not attach even after

a defendant has been arrested based on the filing of a criminal

complaint nor is the right triggered during the period between a

defendant’s      arrest   and    his    arraignment.         United     States   v.

Alvarado, 440 F.3d 191, 200 (4th Cir. 2006); United States v.

D’Anjou, 16 F.3d 604, 608 (4th Cir. 1994).                       Accordingly, in

light of Alvarado and D’Anjou, Williamson fails to demonstrate

any error by the district court in admitting the recording of

his conversation with the informant or that any such error was

“plain” or “clear” under current law.              United States v. Brewer,

1 F.3d 1430, 1435 (4th Cir. 1993).

           Williamson      next       contends    that     the   district   court

abused   its     discretion     by    requiring    his     substitute    retained

counsel to go forward with the trial two days after he was

retained   in     exchange      for    granting    Williamson’s       motion     to

withdraw   his    first   retained      counsel.         Williamson   appears    to

allege that the district court abused its discretion by denying

his implicit motion for a continuance.              Williamson’s argument is

without merit.      First, both attorneys expressed to the district

court that they were prepared to try Williamson’s case two days

after jury selection.           Additionally, the facts in the record,

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including    that    Williamson     did   not    request    substitute      counsel

until the day of jury selection, indicate simply an eleventh

hour attempt at delay by a defendant wishing to avoid having to

face a potential life sentence.                Therefore, the district court

did   not    err    in   granting    Williamson’s        motion    to     substitute

counsel     and     denying   Williamson’s         implicit       motion     for   a

continuance.

             Finally,     Williamson          suggests    his     trial      counsel

rendered     ineffective      assistance.            Claims       of    ineffective

assistance of counsel are not cognizable on direct appeal unless

the   record       conclusively     establishes      that       counsel     provided

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

233, 239 (4th Cir. 2006).           The record here does not conclusively

establish trial counsel’s ineffective assistance.

             Accordingly, we deny Williamson’s motion to file a pro

se supplemental brief and affirm the judgment of the district

court.      We dispense with oral argument as 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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