                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4736


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ARTURO MORALES PENA,

                    Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:17-cr-00082-CCE-1)


Submitted: April 17, 2018                                         Decided: April 19, 2018


Before WILKINSON and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


James B. Craven III, Durham, North Carolina, for Appellant. Randall Stuart Galyon,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Arturo Morales Pena pled guilty, pursuant to a written plea agreement, to

conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(C),

846 (2012). The district court sentenced Morales Pena to 180 months’ imprisonment, a

downward variance from his 235- to 240-month advisory Sentencing Guidelines range.

On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious grounds for appeal, but questioning the

reasonableness of Morales Pena’s sentence and whether he was denied effective

assistance of counsel in the district court. Morales Pena filed a pro se supplemental brief

alleging ineffective assistance of counsel. The Government declined to file a brief.

       Turning first to Morales Pena’s sentencing challenge, we review a sentence for

procedural and substantive reasonableness under a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). We must first ensure that the

district court did not commit any “significant procedural error,” such as failing to

properly calculate the applicable Guidelines range, failing to consider the 18 U.S.C.

§ 3553(a) (2012) sentencing factors, or failing to adequately explain the sentence. Id. If

we find the sentence procedurally reasonable, we then consider its substantive

reasonableness. Id. at 328. We presume on appeal that a sentence within or below the

properly calculated Guidelines range is substantively reasonable.        United States v.

Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Such a presumption is rebutted only when

the defendant shows “that the sentence is unreasonable when measured against the

§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

                                            2
      Morales Pena claims that his sentence is unreasonable because he was promised a

term of no more than 10 years’ imprisonment. We find this claim to be unsupported by

the record. Morales Pena’s plea agreement contained no such promise and he stated

under oath at the plea hearing that his guilty plea was not based on promises outside of

the plea agreement. * The district court correctly calculated Morales Pena’s advisory

Guidelines range, heard argument from counsel, provided Morales Pena an opportunity to

allocute, and considered the § 3553(a) sentencing factors. We have reviewed the record

and conclude that Morales Pena’s below-Guidelines sentence is both procedurally and

substantively reasonable.

      Next, Morales Pena claims that trial counsel was ineffective for failing to tell him

that he could face a two-level adjustment in offense level for his role in the offense,

pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c) (2016). He also asserts

additional claims of ineffective assistance of counsel in his pro se supplement brief.

Unless an attorney’s ineffectiveness conclusively appears on the face of the record, such

claims are not generally addressed on direct appeal. United States v. Benton, 523 F.3d

424, 435 (4th Cir. 2008). Instead, such claims should be raised in a motion brought

pursuant to 28 U.S.C. § 2255 (2012), in order to permit sufficient development of the

record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because the




      *
        The district court fully complied with Fed. R. Crim. P. 11 in accepting Morales
Pena’s guilty plea.


                                           3
record does not conclusively establish ineffective assistance of counsel, we conclude that

Morales Pena’s claims should be raised, if at all, in a § 2255 motion.

       We therefore affirm the judgment of the district court. In accordance with Anders,

we have reviewed the record in this case and have found no meritorious issues for appeal.

We deny counsel’s motion to withdraw. This court requires that counsel inform Morales

Pena, in writing, of the right to petition the Supreme Court of the United States for further

review. If Morales Pena requests that a petition be filed, but counsel believes that such a

petition would be frivolous, then counsel may move in this court for leave to withdraw

from representation. Counsel’s motion must state that a copy thereof was served on

Morales Pena.

       We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                                AFFIRMED




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