                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4142


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CHRISTOPHER RON HILL,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00081-WO-1)


Submitted:   September 30, 2011            Decided:   October 17, 2011


Before AGEE and    DIAZ,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


Jonathan   Leonard,  LEONARD  LAW  FIRM,  Winston-Salem, North
Carolina, for Appellant.      Clifton Thomas Barrett, Michael
Francis Joseph, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Christopher   Ron     Hill   appeals    the    300-month      sentence

imposed following his guilty plea, pursuant to a written plea

agreement, to possession with intent to distribute cocaine base,

in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999 &

Supp. 2011).       Counsel for Hill filed a brief in this court in

accordance     with    Anders     v.    California,    386   U.S.     738    (1967),

asserting that there are no meritorious grounds for appeal but

questioning whether the district court erred in denying Hill’s

motions to withdraw his guilty plea and whether Hill’s sentence

is reasonable.         Hill filed a pro se supplemental brief arguing

that (1) the district court erred in failing to dismiss the

indictment and relying on fabricated information to issue the

warrant and complaint; (2) the district court erred in denying

Hill’s motions to withdraw his guilty plea; (3) the district

court erred in sentencing Hill as a career offender; (4) the

Government     breached     the    plea    agreement;    (5)    Hill’s      sentence

violates the FSA; and (6) trial counsel rendered ineffective

assistance.      Counsel for Hill has now filed a motion to remand

the case, with the Government’s consent, for resentencing in

light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)

(en banc).       For the reasons that follow, we affirm in part,

vacate   in    part,    grant     the   motion   to   remand,   and    remand    for

resentencing.

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              We review for abuse of discretion a district court’s

denial of a motion to withdraw a guilty plea.                       United States v.

Dyess, 478 F.3d 224, 237 (4th Cir. 2007).                      A defendant seeking

to withdraw his guilty plea bears the burden of demonstrating

that withdrawal should be granted.                  Id.     In deciding whether to

permit withdrawal, a district court should consider:

      (1)   whether  the   defendant  has   offered  credible
      evidence that his plea was not knowing or voluntary;
      (2)whether the defendant has credibly asserted his
      legal innocence; (3) whether there has been a delay
      between entry of the plea and filing of the motion;
      (4) whether the defendant has had close assistance of
      counsel; (5) whether withdrawal will cause prejudice
      to the government; and (6) whether withdrawal will
      inconvenience the court and waste judicial resources.

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).

              We conclude that the district court did not abuse its

discretion in denying Hill’s motion to withdraw his guilty plea.

The     district     court      conducted       a   thorough    and    comprehensive

Federal      Rule    of    Criminal     Procedure      11    colloquy,   and    Hill’s

contentions that his indictment was based on a defective warrant

and   that    trial       counsel     rendered      ineffective     assistance       were

meritless and did not undermine the validity of his guilty plea.

Further,      Hill        did   not    assert       his     legal   innocence,        and

significant time and resources had already been spent on his

case.

              Because      antecedent     nonjurisdictional         claims     are   not

cognizable on appeal, United States v. Moussaoui, 591 F.3d 263,

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279 (4th Cir. 2010), we decline to consider Hill’s claims that

the district court erred in failing to dismiss his indictment

because it was based on a defective complaint and in issuing an

arrest warrant based on falsified evidence.                   Additionally, we

hold that the Government did not breach Hill’s plea agreement by

failing to comply with a purported oral amendment to the written

agreement.

            We     further    hold    that   Hill’s   claim      of       ineffective

assistance is not ripe for review at this time as there is no

evidence on the record that counsel was ineffective.                      See United

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).                           Hill

may, should he wish to do so, assert his claim in an appropriate

motion    for    post-conviction      relief.       Accordingly,          we    affirm

Hill’s conviction.

            We review a sentence imposed by a district court under

a    deferential    abuse    of   discretion    standard.        Gall      v.   United

States, 552 U.S. 38, 46 (2007); United States v. Lynn, 592 F.3d

572, 578 (4th Cir. 2010) (abuse of discretion standard of review

applicable       when     defendant    properly     preserves         a    claim     of

sentencing error in district court “[b]y drawing arguments from

[18 U.S.C.] § 3553 [(2006)] for a sentence different than the

one    ultimately       imposed”).     We    must   begin   by    reviewing         the

sentence for significant procedural error, including such errors

as    “failing     to     calculate    (or   improperly     calculating)           the

                                         4
Guidelines range, treating the Guidelines as mandatory, failing

to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen      sentence.”        Gall,   552   U.S.    at    51.   If    there    are   no

procedural         errors,       we    then     consider        the     substantive

reasonableness of the sentence, taking into account the totality

of the circumstances.            Id.; United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007).

               Initially, we note that the district court adequately

explained its reasons for the chosen sentence, considering both

parties’ arguments and the § 3553(a) factors, and did not err in

counting Hill’s consolidated prior convictions as two separate

convictions,        see   U.S.    Sentencing       Guidelines    Manual       (“USSG”)

§§ 4B1.2(c) (2010). 1          Nonetheless, we vacate Hill’s sentence and

grant his motion to remand for resentencing.

               Hill was sentenced as a career offender based on four

prior North Carolina convictions deemed felonies consistent with

our decision in United States v. Harp, 406 F.3d 242, 246 (4th

Cir.       2005)   (holding    that   in    order    to    “determine     whether    a

       1
       We note, however, that only one of the three consolidated
convictions was separated by an intervening arrest.      See USSG
§§ 4A1.1(a), (b), (c), 4A1.2(a)(2).        Accordingly, if the
district court determines on remand that the conviction for
which a separate sentence was imposed does not qualify as a
felony,   it  may   not  consider  the   remaining   consolidated
convictions separately. See id.



                                            5
conviction is for a crime punishable by a prison term exceeding

one year . . . [the court] consider[s] the maximum aggravated

sentence that could be imposed for that crime upon a defendant

with       the   worst        possible        criminal     history”).         Subsequently,

however, we overruled Harp with our en banc decision in Simmons,

in   which       we     held    that     a    North   Carolina      offense    may   not   be

classified         as     a     felony       based    upon    the    maximum    aggravated

sentence that could be imposed upon a repeat offender if the

defendant was not actually eligible for such a sentence.                                   On

this record, it is impossible to determine whether Hill’s prior

convictions qualify as felonies under Simmons.                           Accordingly, we

grant Hill’s motion to remand, vacate his sentence, and remand

for resentencing in light of Simmons. 2

                 In accordance with Anders, we have examined the entire

record and find no other meritorious issues for appeal.                                    We

therefore affirm Hill’s convictions, vacate Hill’s sentence, and

remand for resentencing in light of our decision in Simmons.                               In

doing      so,    we     indicate        no    view   as     to   whether     Hill   may   be

classified        as     a     career    offender      under      Simmons,    leaving   that

determination in the first instance for the district court.




       2
       We of course fault neither the Government nor the district
court for relying on, and applying, unambiguous circuit
authority at the time of Hill’s sentencing.



                                                  6
            This   court       requires    that       counsel     inform     Hill,     in

writing,   of   his     right   to   petition     the      Supreme      Court   of   the

United   States    for   further     review.          If   Hill    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 Hill.

            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 IN PART,
                                                                   VACATED IN PART,
                                                                       AND REMANDED




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