UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4385

JAMES D. DAWKINS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CR-95-275)

Submitted: December 30, 1997

Decided: January 21, 1998

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Anne R. Littlejohn, Greensboro, North Carolina, for Appellant. Wal-
ter C. Holton, Jr., United States Attorney, Douglas Cannon, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

James D. Dawkins appeals his conviction and sentence for posses-
sion of cocaine and cocaine base arising from the consensual search
of his van following an otherwise unremarkable traffic stop. See 21
U.S.C. §§ 841(a)(1) & (b)(1)(a) (1994). Dawkins noted a timely
appeal pro se and his attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967), in which he represents that
there are no arguable issues of merit in this appeal. Nonetheless,
counsel presented the court with four putative issues. Despite being
granted three extensions of time in which to do so, Dawkins failed to
file a supplemental brief. We deny Dawkins' request for a fourth
extension of time to file his brief. Because we find each claim raised
by counsel to be without merit and can discern no other error in the
record below, we affirm Dawkins' conviction and sentence.

Counsel first suggests that this court might review the district
court's refusal to grant a downward departure from the Sentencing
Guidelines on the grounds that Dawkins' criminal history was over-
represented. See U.S. Sentencing Guidelines Manual § 4A1.3 (1995).
However, counsel correctly notes that the district court's refusal to
depart is not reviewable on appeal. See United States v. Bayerle, 898
F.2d 28, 32 (4th Cir. 1990). Consequently, this court may not disturb
the district court's ruling.

Counsel next addresses the possibility that the district court com-
mitted plain error by not excluding Dawkins' prior misdemeanor con-
victions sua sponte. The district court could exclude prior convictions
that were shown to be constitutionally invalid. USSG§ 4A1.2, com-
ment. (n.6). A defendant may challenge the validity of a prior convic-
tion only on the ground that it was obtained in violation of the right
to counsel. See Custis v. United States, 511 U.S. 485, 496 (1994).
Dawkins notes that the presentence report is not conclusive regarding
the presence or absence of counsel. In the case of misdemeanor con-
victions that did not result in imprisonment, like those at issue here,
the conviction may be counted notwithstanding the absence of coun-
sel. See Nichols v. United States, 511 U.S. 738, 748 (1994). The dis-

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trict court did not commit plain error in using the two convictions to
calculate Dawkins' criminal history.

The next assignment of error is equally unavailing. Despite the fact
the record reflects that Dawkins gave the arresting officer permission
to search the van at the conclusion of the traffic stop, Dawkins con-
tends that the seizure of the drugs from the van violated his Fourth
Amendment rights. Dawkins has waived any challenge to the seizure
of evidence from his van because he failed to move to suppress that
evidence prior to trial. See United States v. Ricco, 52 F.3d 58, 62 (4th
Cir. 1995); Fed. R. Crim. P. 12(f). This claim does not give us
grounds for disturbing the conviction.

Finally, following a federal conviction, an ineffective assistance of
counsel claim should ordinarily be raised by a motion under 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997), in the district court and
not on direct appeal to this court. See United States v. Fisher, 477
F.2d 300, 302 (4th Cir. 1973); see also United States v. DeFusco, 949
F.2d 114, 120-21 (4th Cir. 1991). This general rule is true unless it
"conclusively appears" in the trial record that counsel did not provide
effective assistance. Fisher, 477 F.2d at 302. In this case, it does not
"conclusively appear" from the record on appeal that Dawkins was
denied the effective assistance of counsel at any stage. Consequently,
this claim is more properly advanced in a § 2255 motion.

As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by his client to do so,
counsel should prepare a timely petition for writ of certiorari. We
deny Dawkins' motion to appoint alternate counsel and dispense with
oral argument because 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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