                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4592


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BILLY CHARLES BURGESS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:08-cr-00341-D-1)


Submitted:   March 28, 2013                 Decided:   April 1, 2013


Before NIEMEYER, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Neal Gary Rosensweig, NEAL ROSENSWEIG, P.A., Hollywood, Florida,
for Appellant.   Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a written plea agreement, Billy Charles

Burgess pled guilty to receiving child pornography in violation

of 18 U.S.C.A. § 2252(a)(2) (West Supp. 2012).                           The district

court    sentenced     him    to    258     months’      imprisonment.          Burgess

appeals.      His    counsel       filed    a    brief    pursuant    to    Anders      v.

California, 386 U.S. 738 (1967), asserting that there are no

meritorious grounds for appeal, but questioning whether Burgess’

guilty    plea   was   valid       and     whether      the   sentence     imposed      is

reasonable.         Burgess        filed     a    pro    se    supplemental          brief

challenging the reasonableness of his sentence in light of the

Government’s     motion      for     a     downward      departure       due    to     his

substantial assistance and asserting that trial and appellate

counsel    provided    ineffective         assistance.         We   affirm      Burgess’

conviction and sentence.

            Because Burgess did not contest the Fed. R. Crim. P.

11 proceedings in the district court, we review his challenge to

the validity of his plea for plain error.                     See Fed. R. Crim. P.

52(b); United States v. Vonn, 535 U.S. 55, 59 (2002); United

States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007).                          We have

reviewed the record and conclude that Burgess has not shown any

plain error by the district court.

            We review Burgess’ sentence for reasonableness under a

“deferential     abuse-of-discretion             standard.”         Gall   v.    United

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States, 552 U.S. 38, 41 (2007).                  This review entails appellate

consideration        of    both        the       procedural       and      substantive

reasonableness of the sentence.                   Id. at 51.         In determining

procedural     reasonableness,         we     consider     whether      the    district

court     properly   calculated     the      defendant’s      advisory        Guidelines

range, considered the 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2012) factors, selected a sentence based on clearly erroneous

facts, or failed to explain sufficiently the selected sentence.

Id. at 49-51.        If the sentence is free of significant procedural

error, we review it for substantive reasonableness, “tak[ing]

into account the totality of the circumstances.”                     Id. at 51.       We

presume that a sentence within or below a properly calculated

Guidelines range is substantively reasonable.                     United States v.

Susi, 674 F.3d 278, 289 (4th Cir. 2012).

             After     review     of     counsel’s         sentencing         challenge,

Burgess’ claim that the court failed to note on the record the

specific allowance given for his assistance to the Government,

and the remainder of the record pursuant to Anders, we conclude

that the district court did not abuse its discretion in imposing

sentence in this case.            The district court properly calculated

Burgess’     advisory     Guidelines         range   and    heard       argument    from

counsel and allocution from Burgess.                 The court also considered

the   §    3553(a)    factors,     explaining        that     a   within-Guidelines

sentence was warranted in view of the nature and circumstances

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of    Burgess’     offense        conduct       and        Burgess’      history    and

characteristics.          Although      the    court       afforded     Burgess    some

credit for his substantial assistance to the Government, the

court noted Burgess’ recidivism in exploiting children, the fact

that he minimized his conduct and expressed no remorse for it,

and the need to protect the public from his further conduct.

The court determined that, even considering Burgess’ assistance

to    the    Government,     a    258-month       sentence        was    appropriate.

Reviewing the reasonableness of this sentence, we defer to the

district     court’s   decision         that    this       sentence     achieved    the

purposes of sentencing in Burgess’ case.                     See United States v.

Jeffery, 631 F.3d 669, 679 (4th Cir.) (“[D]istrict courts have

extremely broad discretion when determining the weight to be

given each of the § 3553(a) factors.”), cert. denied, 132 S. Ct.

187   (2011).      Burgess       has   failed     to       overcome     the   appellate

presumption that his within-Guidelines sentence is substantively

reasonable.      Accordingly, we conclude that the district court

did not abuse its discretion in imposing sentence.

             Burgess   avers     that    his    trial       and   appellate     counsel

provided     ineffective     assistance.              To    establish     ineffective

assistance of counsel, Burgess must show that: (1) counsel’s

performance fell below an objective standard of reasonableness;

and    (2)    counsel’s     deficient          performance        was    prejudicial.

Strickland v. Washington, 466 U.S. 668, 687 (1984). However,

                                          4
claims of ineffective assistance of counsel are generally not

cognizable on direct appeal, unless counsel’s “ineffectiveness

conclusively      appears     from     the   record.”       United    States    v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

           Here,    the     record    does   not   conclusively       demonstrate

that counsel was ineffective. As such, Burgess’ claims are not

cognizable on direct appeal; instead, he can bring these claims

in a 28 U.S.C.A. § 2255 (West Supp. 2012) proceeding where he

can further develop the record.

           In accordance with Anders, we have examined the entire

record in this case and have found no meritorious issues for

review. Accordingly, we affirm Burgess’ conviction and sentence.

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

counsel inform Burgess, in writing, of his right to petition the

Supreme   Court    of   the   United    States     for    further    review.    If

Burgess requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may renew

his motion at that time.             Counsel’s motion must state that a

copy   thereof    was   served   on    Burgess.      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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