                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4730


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

FERNANDO ALEXANDER SETTLES,

                Defendant – Appellant.



                              No. 09-4752


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

WINSTON CHARLES MACK,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.   William D. Quarles, Jr., District
Judge. (1:08-cr-00348-WDQ-4; 1:08-cr-00348-WDQ-3)


Submitted:   January 10, 2011               Decided:   January 20, 2011


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Steven H. Levin, LEVIN & GALLAGHER LLC, Baltimore, Maryland;
Timothy J. Sullivan, Brett J. Cook, BRENNAN SULLIVAN & MCKENNA
LLP, Greenbelt, Maryland, for Appellants.     Christopher John
Romano, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In    March      2009,     Fernando       Alexander        Settles,     Winston

Charles Mack, and three other co-defendants were charged in a

five-count superseding indictment.                    Settles and Mack were each

charged    with       conspiracy     to     distribute      500       grams    or   more   of

cocaine hydrochloride and 50 grams or more of cocaine base, in

violation of 21 U.S.C. § 846 (2006) (Count One).                               Settles was

also charged with possession with intent to distribute cocaine

hydrochloride,         in   violation       of   21   U.S.C.      §    841(a)(1)       (2006)

(Count Three).          The Government filed notice that Settles faced

an enhanced penalty pursuant to 21 U.S.C.A. §§ 841(b)(1)(A), 851

(West     1999    &    Supp.       2010),    based     on    a    prior       felony    drug

conviction.       Mack also faced a charge of possession with intent

to distribute marijuana and cocaine base, in violation of 21

U.S.C. § 841(a)(1) (Count Five).                  Settles and Mack pleaded not

guilty and were convicted following a jury trial.                              Settles was

sentenced to the 240-month mandatory statutory minimum and Mack

was sentenced to 136 months’ imprisonment, the middle of his

U.S.    Sentencing          Guidelines       Manual      (“USSG”)        (2008)        range.

Finding no reversible error, we affirm.

            In this consolidated appeal, counsel for Settles and

counsel    for    Mack      have    filed    a   brief      pursuant      to    Anders     v.

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

meritorious grounds for appeal, but asking us to review, first,

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whether Settles received ineffective assistance of counsel where

trial counsel failed to subpoena a witness; second, whether the

district court erred in imposing a mandatory minimum sentence

based on Settles’ prior convictions; and third, whether Mack’s

decision to release counsel at sentencing was voluntarily made.

              At his sentencing hearing, Settles stated that he had

requested that trial counsel subpoena Gregory Sellers to testify

in his defense, but that counsel refused to do so.                          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).         We    conclude     that    ineffective

assistance     does     not    appear    conclusively       on   this    record.        In

order    to   allow     for    the   adequate       development    of     the    record,

Settles must bring his claim in a 28 U.S.C.A. § 2255 (West Supp.

2010)   motion.         See    United   States       v.   Baptiste,     596 F.3d       214,

216-17 n.1 (4th Cir. 2010).

              Turning    to    Settles’    sentence,        we   conclude       that    the

district court did not err in imposing the mandatory minimum

sentence pursuant to 21 U.S.C.A. § 841(b)(1)(A).                       Settles argues

that    the   prior     conviction      used    to    enhance    his     sentence      was

improper because it occurred during the course of the conspiracy

charged in Count One.            However, even if Settles’ conviction was

considered to be part of the charged conspiracy, the twenty-year

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mandatory        minimum      would    still          apply.         “When      a    defendant        is

convicted of a drug conspiracy under 21 U.S.C. § 846, prior

felony drug convictions that fall within the conspiracy period

may    be    used       to    enhance       the        defendant’s          sentence            if   the

conspiracy continued after his earlier convictions were final.”

United States v. Smith, 451 F.3d 209, 224 (4th Cir. 2006).

               Next, counsel asks this court to review whether Mack’s

release      of        counsel    at       sentencing           was        intelligently             and

voluntarily made.             We find that it was.               We review the waiver of

the    right      to    counsel       by    examining          the    record         as     a    whole,

including        “the     complete         profile       of     the       defendant          and     the

circumstances of his decision.”                       United States v. Bush, 404 F.3d

263,   270       (4th Cir. 2005).            “A       refusal       without         good    cause     to

proceed      with      able   appointed       counsel          is     a    voluntary         waiver.”

United      States      v.    Gallop,       838       F.2d     105,       109    (4th Cir. 1988)

(internal        quotation       marks       omitted);          see        United          States    v.

McQueen, 445 F.3d 757, 760-61 (4th Cir. 2006) (“[i]t is not a

denial      of    the    right    to       counsel       to     refuse          to    indulge        the

defendant’s transparent attempts at manipulation by requesting

an attorney on the day of trial.”).                          Given that Mack’s decision

to relieve counsel was made at the sentencing hearing and based

on a meritless accusation against counsel, we conclude Mack’s

conduct constituted a refusal without good cause to proceed with



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able appointed counsel and his waiver of right to counsel was

therefore intelligently and voluntarily made.

               We have thoroughly examined the pro se issues raised

by Settles and Mack, and find them without merit.                              In accordance

with Anders, we have thoroughly reviewed the entire record in

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

therefore       affirm     both    Settles’           and    Mack’s       convictions       and

sentences.       We deny Mack’s motion to substitute counsel.

               This court requires that Settles’ and Mack’s counsel

each    inform    them,     in    writing,       of    the    right       to    petition    the

Supreme    Court      of   the    United   States           for    further      review.      If

Settles or Mack requests that a petition be filed, but counsel

believes that 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 his 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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