                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4473


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MALIK JAMAL FOREMAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.     Malcolm J.
Howard, Senior District Judge. (2:10-cr-00026-H-1)


Submitted:   January 31, 2013             Decided:   March 21, 2013


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph A. DiRuzzo, III, FUERST ITTLEMAN DAVID & JOSEPH, PL,
Miami, 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Unpublished opinions are not binding precedent in this circuit.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:

              Malik Jamal Foreman pleaded guilty to distribution of

more than fifty grams of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1)      (2006).          His    attorney          has     filed       an    Anders v.

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

meritorious      issues     for    appeal,          but     questioning          whether        the

sentence was reasonable.                Foreman filed a pro se supplemental

brief    claiming        counsel        on     his    first        direct        appeal         was

ineffective      in    filing     a     motion       to     remand       for     resentencing

instead of filing a merits brief.                     He also alleges ineffective

assistance     of     counsel     at    re-sentencing            for    failing      to     argue

sentencing      errors    from     the       first    sentencing,          including        drug

amount   that    was     not    corroborated          and    the       application         of   21

U.S.C. § 851 (2006) to his sentence.                         The Government has not

filed a brief.        We affirm.

              Foreman’s first appeal was remanded by this court and

the   sentence      vacated     for     consideration            of     whether      the    Fair

Sentencing      Act    (FSA)      should       be    retroactively          applicable          to

Foreman’s sentence.            On remand, the district court applied the

FSA   retroactively,       and,        applying      the     sentencing          enhancements

under    21    U.S.C.     §§ 841,       851        (2006),       found     the      Sentencing

Guidelines      range      to     be     121-151          months.          After          hearing

recommendations        from     the     parties,          reviewing       the       18     U.S.C.

§ 3553(a)     (2006)      factors,       and       discussing          Foreman’s         criminal

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history,    the     court    imposed       a     132-month           sentence.       The     court

found that a mid-range sentence “capture[d] the aggravating and

the mitigating sentencing factors.”

            Although        he        offers     no    specific         claims       of    error,

counsel questions whether Foreman’s sentence is procedurally and

substantively reasonable.                This court reviews a sentence under a

deferential       abuse     of       discretion        standard.             Gall    v.    United

States, 552 U.S. 38, 51 (2007).                       The first step in this review

requires     the    court        to    inspect        the    sentence         for    procedural

reasonableness by ensuring that the district court committed no

significant      procedural           errors,    such       as    improperly        calculating

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

§ 3553(a)     factors,       or         failing       to     adequately            explain    the

sentence.     See United States v. Boulware, 604 F.3d 832, 837-38

(4th   Cir.      2010).          A     reviewing           court      then    considers       the

substantive reasonableness of the sentence imposed, taking into

account the totality of the circumstances.                              Gall, 552 U.S. at

51.    If the sentence is within the Guidelines range, this court

presumes    on     appeal    that       the     sentence         is   reasonable.          United

States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v.

United States, 551 U.S. 338, 346-56 (2007) (permitting appellate

presumption of reasonableness for within-Guidelines sentence).

            Here, the district court properly calculated Foreman’s

Guidelines       sentence    and        then     imposed         a    sentence      within    the

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Guidelines      range.          Neither      party    objected        to    the     Guidelines

range, and the court provided sufficient reasoning supporting

its decision.          Specifically, the district court noted Foreman’s

criminal history and continued return to drug trafficking even

after serving a ten–year sentence.                    The district court imposed a

sentence at the middle of the Guidelines range of 132 months.

We conclude that the court set forth a sufficiently developed

rationale to support the sentence, and there was no procedural

error.      Regarding the substantive reasonableness of Foreman’s

sentence, the district court’s imposition of a sentence within

the Guidelines range is presumptively reasonable and Foreman has

not rebutted that presumption.

               We have reviewed the issues Foreman raised in his pro

se supplemental brief and conclude that they are without merit.

Foreman raised ineffective assistance of counsel of his first

appellate      attorney        because    he       filed   a    motion       to    remand    for

re-sentencing in light of the FSA instead of raising sentencing

errors    at    the     first    sentencing.           This     claim       is    based     on   a

misunderstanding         of     the   appellate        and     re-sentencing            process.

Because     this       court    vacated      the     sentence         and    remanded,       the

sentencing process began anew.

               Next,     Foreman      contends        that      he     did        not   receive

effective assistance of counsel when counsel at re-sentencing

did   not   object       to     the   drug     quantity        used    to    calculate       his

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sentence or the application of the increased mandatory minimum

under    § 851.           Claims   of   ineffective     assistance     of    counsel

generally are not cognizable on direct appeal.                    United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997).                    Rather, to allow for

adequate development of the record, a defendant generally must

bring his claims in a 28 U.S.C.A. § 2255 (West Supp. 2012)

motion.    Id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.

1994).     However, ineffective assistance claims are cognizable on

direct appeal if the record conclusively establishes ineffective

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

Cir. 1999).

               To   demonstrate      ineffective      assistance,     a    defendant

must    show    that      his    “counsel’s      representation    fell     below   an

objective standard of reasonableness,” and that the error was

“prejudicial to the defense” such that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result     of       the      proceeding      would    have    been        different.”

Strickland v. Washington, 466 U.S. 668, 688, 692, 694 (1984).

               First, as to drug quantity, at the first sentencing

hearing counsel objected to the quantity attributed based on

uncorroborated testimony from one witness and videotape of one

controlled buy that Foreman participated in and was the subject

of the count to which he pled guilty.                  Our review of the record

confirms       that    the      Government    established    the    relevant    drug

                                             5
quantity    by     a    preponderance     of     the     evidence.          We     therefore

conclude that the district court’s assessment was not error and

either reviewed on the merits or as an ineffective assistance of

counsel claim, the claim fails.

            Next,        Foreman   argues       that    he    should    not      have   been

subject to the § 851 enhancement because the prosecutor acted

arbitrarily in filing the information after Foreman refused to

plead     guilty       to   the    conspiracy       count       and    the       Government

subsequently dismissed the count before discovery was completed.

Presumption of prosecutorial vindictiveness is not warranted in

this case where there was no actual evidence of vindictiveness

and absent such a presumption of vindictiveness no due process

violation can be established.                   United States v. Goodwin, 457

U.S. 368, 380-84 (1982).                The court therefore did not err in

denying    this        objection   at    the     first       sentencing      hearing    and

Foreman would be unable to demonstrate prejudice from the record

before the court on an ineffective assistance claim.

            Finally,        Foreman     alleged        that    he     did    not    have   a

predicate conviction under § 851 after this court decided United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (holding that

consideration of hypothetical aggravating factors and criminal

history is inappropriate when determining whether prior offense

constitutes felony) and counsel was ineffective for failing to

raise this objection at the re-sentencing hearing.                            Simmons had

                                            6
been pending on appeal during Foreman’s first sentencing.                                    His

sentence was enhanced based on a 2000 conviction in New York

State     for        attempted         criminal          sale     of         a       controlled

substance-third           degree.      Foreman     received       a    sentence         of   six

months of custody-suspended and one year of probation.

               Under      New   York    law,     criminal       sale    of       a   controlled

substance in the third degree is a class B felony.                                   N.Y. Penal

Law § 220.39 (McKinney 2006).                    An attempt to commit a class B

felony is a class C felony.                N.Y. Penal Law § 110.05 (McKinney

2006).    A class C felony is punishable by a maximum of fifteen

years of imprisonment and a minimum of one year.                             N.Y. Penal Law

§§ 70.00, 70.70           (McKinney 2007).

               At   his    initial      sentencing,       counsel       objected        to   the

offense qualifying as a predicate felony because Foreman did not

receive    an       imprisonment        term   of    a    year     or    more.         However,

Foreman’s attempt to sell a controlled substance was punishable

by one year or more of imprisonment, and thus was a qualifying

predicate for career offender sentencing.                             Although the penal

code permits a first time offender convicted of a class C felony

to receive as little as a parole supervision sentence, Foreman

could have received a sentence of up to fifteen years.                                 See N.Y.

Penal    Law    §§ 70.00,        70.70.        Therefore,        even    after         Simmons,

Foreman’s conviction may qualify as a predicate offense.                                      We

note, however, that the information in the PSR is very limited

                                               7
about the conviction.           Nonetheless, we conclude, that even if

the   conviction    no    longer     qualifies       under      § 851,   there    is   no

indication in the record that the district court’s sentencing

decision was affected by the enhanced statutory minimum sentence

of 120 months.      The lowest end of the Guidelines range exceeded

the   statutory    minimum     and    the       court    expressed    its     desire   to

sentence   Foreman       in   the   mid-range,          and    subsequently    did     so.

Therefore, any procedural sentencing error would be harmless.

See United States v. Savillon-Matute, 636 F.3d 119, 123 (4th

Cir.), cert. denied, 132 S. Ct 454 (2011) (holding procedural

error is harmless where the court would have reached the same

result had the Guidelines issue been decided the other way and

the sentence imposed would be reasonable even if contested issue

decided in defendant’s favor).                  Therefore, on the record before

the   Court,   Foreman’s       claims       related       to    the   § 851    enhanced

minimum fail both directly on the merits and as an ineffective

assistance claim.

           In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Foreman’s conviction and sentence.                               This

court requires that counsel inform Foreman, in writing, of the

right to petition the Supreme Court of the United States for

further review.      If Foreman requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

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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 Foreman.

            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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