                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4324


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL GREENE, a/k/a Mike,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:09-cr-00039-FDW-DCK-5)


Submitted:   September 25, 2012             Decided:   March 7, 2013


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


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


James B. Craven III, Durham, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             After a jury trial, Michael Greene was convicted of

one count of conspiracy to distribute and possess with intent to

distribute 50 grams or more of crack cocaine and less than 500

grams of cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), 846,

851 (West 1999 & Supp. 2012), and one count of conspiracy to

commit robbery affecting interstate commerce, in violation of 18

U.S.C. § 1951 (2006).         He was sentenced to life imprisonment.

Counsel filed a brief under Anders v. California, 386 U.S. 738

(1967), asserting there are no meritorious issues for review but

raising for the Court’s consideration:              (1) the sufficiency of

the evidence and (2) the ineffectiveness of counsel.                  Counsel

subsequently filed a supplemental brief asserting that Greene’s

sentence was in error based on the rule announced in United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).                  The

Government filed a brief addressing the Simmons issue and Greene

filed a pro se supplemental brief raising several issues.                  While

we affirm the convictions, we find that Greene’s life sentence

violates the rule announced in Dorsey v. United States, 132 S.

Ct.   2321    (2012),   and   vacate       the   sentence   and   remand    for

resentencing. 1


      1
       Dorsey was issued after Greene was sentenced but during
the pendency of this appeal.



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              A     jury’s    verdict       “must       be   sustained        if   there    is

substantial        evidence,       taking    the    view      most      favorable    to    the

Government, to support it.”                 Glasser v. United States, 315 U.S.

60, 80 (1942); see United States v. Perkins, 470 F.3d 150, 160

(4th   Cir.       2006).      Substantial         evidence      is      “evidence    that    a

reasonable         finder     of    fact     could        accept      as      adequate     and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”           United States v. Alerre, 430 F.3d 681, 693

(4th Cir. 2005) (internal quotation marks omitted).                                The court

considers both circumstantial and direct evidence, drawing all

reasonable        inferences       from    such    evidence      in     the    Government’s

favor.       United States v. Harvey, 532 F.3d 326, 333 (4th Cir.

2008).       In evaluating sufficiency of the evidence, this court

does   not    reweigh        the    evidence       or    reassess       the    factfinder’s

determination of witness credibility, United States v. Brooks,

524 F.3d 549, 563 (4th Cir. 2008), and “can reverse a conviction

on insufficiency grounds only when the prosecution’s failure is

clear.”       United States v. Moye, 454 F.3d 390, 394 (4th Cir.

2006) (en banc) (internal quotation marks omitted).

              We    conclude       that    there    was      substantial       evidence     to

support      both    convictions.           The     evidence       in    support     of    the

convictions came from law enforcement and several of Greene’s

co-conspirators.            In addition, there was evidence of wiretaps,

weapons      seizures,       DNA    and    drug     analysis       that    offered       clear

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support for the guilty verdicts.                   There was more than sufficient

evidence showing that Greene voluntarily agreed to engage in a

conspiracy         to     distribute       drugs     and        to   commit     a     robbery.

Accordingly, we affirm the convictions.

               When       Greene    was    sentenced       it    was   believed       that   he

faced a statutory maximum sentence of life imprisonment.                                 After

sentencing, the Supreme Court issued Dorsey, which held that the

more       lenient      penalties     of     the   Fair     Sentencing         Act     (“FSA”)

applied to pre-FSA offenders who were sentenced after the Act’s

effective date.            Dorsey, 132 S. Ct. at 2331.                 Because Greene was

sentenced       after       the    Act’s     effective       date      for     conduct    that

occurred prior to enactment, the Act applies to him.                                Greene was

found guilty of conspiracy to distribute at least 50 grams of

crack      cocaine      and   500    grams    of     cocaine.          Under    the    amended

version       of     21     U.S.C.A.       § 841(b)(1)(A),           Greene’s        statutory

maximum sentence is forty years’ imprisonment.                                 We conclude,

therefore, that Greene’s sentence must be vacated and remanded

to the district court for resentencing.                          We note, however, that

we find no error in the Guidelines’ calculations and the court’s

findings      regarding       Greene’s       total    offense        level     and    criminal

history category. 2

       2
       Because we are remanding for resentencing under the rule
announced in Dorsey, the Simmons issue raised by counsel in his
first supplemental brief is rendered moot.


                                               4
            We have reviewed the issues raised in Greene’s pro se

supplemental          brief    and    find     them   without    merit.       Greene’s

ineffective assistance of counsel claim is not cognizable on

direct appeal.          Such claims are not reviewable on direct appeal

unless      the        record        conclusively       establishes       ineffective

assistance.          United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999).           Rather, to allow for adequate development of the

record,    claims       of    ineffective       assistance    generally     should   be

brought    in     a    28     U.S.C.A.     §   2255   (West   Supp.   2012)    motion.

United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994).

            Accordingly, we affirm the convictions and vacate the

sentence and remand for resentencing in accordance with the rule

announced       in     Dorsey.        In     accordance   with    Anders,     we   have

reviewed the record for other meritorious issues and have found

none.     Greene has filed a motion to replace counsel and assign a

new appointed counsel and his counsel has filed a motion to

withdraw, both of which we deny. 3                 We dispense with oral argument

because the facts and legal contentions are adequately presented




     3
       We acknowledge that Greene’s counsel has filed a second
supplemental brief concerning newly discovered evidence.       We
take no position on this issue, recognizing that Greene has
filed a motion for a new trial in the district court concerning
this same evidence. It is appropriate for the district court to
address the issues raised in the motion in the first instance.



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in the materials before the court and argument would not aid the

decisional process.

                                               AFFIRMED IN PART;
                                    VACATED AND REMANDED IN PART




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