                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-5037


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ARCHAVIS BRIANN MOORE,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District   of  North   Carolina,  at  Charlotte.   Robert J.
Conrad, Jr., Chief District Judge. (3:05-cr-00028)


Submitted:    October 17, 2008             Decided:   December 29, 2008


Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


Sandra J. Barrett, LAW OFFICE OF SANDRA J. BARRETT, Asheville,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Archavis        Briann      Moore      was     convicted       by     a    jury       of

possession of a firearm after having been convicted of a crime

punishable by more than one year of imprisonment, in violation

of   18   U.S.C.      §    922(g)       (2000),        possession         with    intent          to

distribute detectable amounts of cocaine base and marijuana, in

violation     of     21    U.S.C.       §    841(a)(1),         (b)(1)(C)        (2000),       and

possession    of     a    firearm    during        a     drug   trafficking           crime,      in

violation of 18 U.S.C. § 924(c) (2000).                              The district court

concluded    that        Moore    qualified        for    enhanced        sentencing         as    a

career offender pursuant to U.S. Sentencing Guidelines Manual

(USSG) § 4B1.1 (2005), and sentenced him to a total of 360

months of imprisonment.            Moore timely appealed.

            While        Moore’s     appeal        was    pending,        we     granted       the

Government’s motion to remand the case to the district court for

a hearing on a potential conflict of interest because Moore’s

counsel   was      under    investigation           by    the    Government.            At     the

hearing, the district court found an actual conflict of interest

existed and relieved counsel from further representation.                                      New

counsel was appointed to represent Moore on appeal.

             Moore        first     asserts         that        he    received         per        se

ineffective     assistance         of       counsel      based       on   trial       counsel’s

conflict of interest.               The Government responds, arguing that

there is no evidence that, at the time of his representation of

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Moore, counsel was aware that he was under investigation; and

that the record does not reflect any adverse effect of such

possible knowledge on counsel’s representation of Moore in this

case.     Claims of ineffective assistance of counsel are generally

not cognizable on direct appeal.               See United States v. King, 119

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

development of the record, a defendant must bring his claim in a

28   U.S.C.    § 2255    (2000)      motion.     See   id.;    United   States   v.

Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).                     An exception exists

when the record conclusively establishes ineffective assistance.

United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999);

King, 119 F.3d at 295.               Our review of the record leads us to

conclude that it does not conclusively show that counsel was

ineffective,     or     that    counsel   was    aware   of    the   Government’s

investigation of his conduct during his representation of Moore.

              Moore also argues that he was improperly sentenced as

a career offender.          Moore was classified as a career offender

based on prior felony convictions for robbery with a dangerous

weapon and kidnapping and possession with intent to sell and

deliver     marijuana.          In     considering     the     district   court’s

application      of   the      Guidelines,      this   court    reviews   factual

findings for clear error and legal conclusions de novo.                    United

States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).



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             Moore asserts three defects in his sentencing.                                First,

he argues that the court erred in imposing “career criminal”

status   because        the    Government         failed        to    file    an    information

alleging    more       than    one    prior       conviction,         as     required      by    the

statute.      The career offender Guidelines provision does not,

however,    require       pretrial          notice    of    the       necessary          predicate

felony     convictions.            Further,        this     court       has       held    that    a

sentencing        enhancement          based         on     the        defendant’s           prior

convictions       is    not    a     part    of    the     charge,          and    need    not    be

included in the indictment.                 United States v. Thompson, 421 F.3d

278, 280-84 (4th Cir. 2005).                 This argument is without merit.

             Moore next argues that the district court erred in

counting    his    1993       convictions          for    robbery          with    a     dangerous

weapon and second degree kidnapping as separate convictions for

purposes     of    exposing           him    to      an    enhanced          sentence.            At

sentencing,       the    Government          agreed       that       Moore’s       robbery       and

kidnapping convictions should count as only one conviction for

sentencing purposes, and the record reflects they were counted

as only one conviction.

             Moore’s          final     argument           is        that     his        marijuana

conviction was not a qualifying felony drug conviction because

the   statutory        maximum       sentence       used    to       determine         whether     a

conviction is a felony should be the presumptive range sentence

and not the aggravated range sentence under North Carolina’s

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structured      sentencing          statute.        Moore      acknowledges        that      his

argument is negated by this court’s decision in United States v.

Harp, 406 F.3d 242 (4th Cir. 2005), but asserts Harp should be

reconsidered.          Moore has not provided any persuasive reason why

this decision should be reconsidered, and “a panel of this court

cannot overrule, explicitly or implicitly, the precedent set by

a prior panel of this court.                   Only the Supreme Court or this

court sitting en banc can do that.”                     Scotts Co. v. United Indus.

Corp.,    315     F.3d      264,    271-72     n.2      (4th    Cir.      2002)    (internal

quotation       marks       and   citations        omitted).         We    find    that       the

district       court    properly      determined         that    Moore      was    a    career

offender.

               We therefore affirm Moore’s convictions and sentence.

The written judgment of the district court erroneously states

that Moore’s conviction on Count Two was for possession with

intent    to    distribute         cocaine     and      cocaine      base,     rather        than

cocaine    base       and    marijuana.        Accordingly,          we    remand       to   the

district       court    for       correction       of   this    clerical       error.          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 AND REMANDED




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