                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4639


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ANTHONY ALSTON,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:01-cr-00001-H-1)


Submitted:    January 29, 2009              Decided:   February 17, 2009


Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Carol Ann Bauer, Morganton, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Anthony Alston appeals the district court’s revocation

of his supervised release and imposition of a 60-month sentence.

On appeal, counsel for Alston filed a brief pursuant to Anders

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

meritorious issues for appeal, but asking the court to review

whether Fed. R. Crim. P. 11 should have been applied to Alston’s

supervised       release            revocation         hearing,          whether     Alston         was

deprived    of       a   preliminary         hearing      or       his    due    process       rights

under    Fed.    R.          Crim.     P.    32.1,      and    whether          Alston       received

ineffective      assistance            of    counsel.          Alston       filed        a    pro    se

supplemental brief in which he raised a number of additional

claims regarding ineffective assistance of counsel.                                   Finding no

error, we affirm.

            Alston            claims      that    he    was    denied       his     due       process

rights     during            his     supervised         release          revocation          hearing,

asserting       the          district       court      did     not        provide        procedural

safeguards pursuant to Rule 11 or satisfy the requirements of

Rule 32.1.           However, Rule 11 is not applicable to revocation

hearings; given the “flexible, informal nature of the revocation

hearing     .    .       .    the     full    panoply         of    procedural        safeguards

associated with a criminal trial” are not required.                                          Black v.

Romano, 471 U.S. 606, 613 (1985).                            While Alston also contends

the district court violated Rule 32.1, there is no evidence in

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the record to support this claim.                 Alston was provided with

written notice of the alleged violations, a hearing at which

witnesses were called and made available for cross-examination,

and the opportunity to make a statement and present information

in his defense.          Alston was also represented by counsel and

permitted to subpoena witnesses.             While Alston contends that he

was denied a preliminary hearing, the record clearly indicates

that Alston received a preliminary hearing on May 20, 2008, at

which time the magistrate judge ordered that Alston remain in

custody.        Because    there    is       no   evidence     in     the   record

demonstrating that the procedural requirements pursuant to Rule

32.1 were not satisfied, we find this claim is without merit.

            Alston      next   claims    that     he   received       ineffective

assistance of counsel.         However, unless the record conclusively

demonstrates     ineffective     assistance,       such      claims    should    be

raised in a 28 U.S.C. § 2255 (2006) motion rather than on direct

appeal.    See United States v. King, 119 F.3d 290, 295 (4th Cir.

1997).     Claims of ineffective assistance of counsel cannot be

fairly adjudicated on direct appeal when the appellant has not

raised    the   issue   before   the    district    court     and   there   is   no

statement from counsel on the record.              United States v. DeFusco,

949 F.2d 114, 120-21 (4th Cir. 1991).                  Because the existing

record fails to conclusively support any of Alston’s allegations



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of ineffective assistance, such claims must be raised as part of

a § 2255 motion rather than on direct appeal.

            In accordance with Anders, we have reviewed the record

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

We therefore affirm the district court’s judgment.                   This court

requires   that     counsel    inform   her    client,   in   writing,    of   his

right to petition the Supreme Court of the United States for

further    review.     If     the   client    requests   that   a   petition    be

filed, but counsel believes 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    the    client.     We    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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