                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4271



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


THOMAS TRAY SHARMONE KEARNEY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
District Judge. (CR-04-15)


Submitted:   August 4, 2006            Decided:   September 12, 2006


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant.       Frank DeArmon
Whitney, United States Attorney, Anne Margaret Hayes, Assistant
United Sates Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Thomas Tray Sharmone Kearney entered a guilty plea to

robbery of a postal carrier and aiding and abetting, in violation

of 18 U.S.C. §§ 2 and 2114(a) (2000) (Count One), and use of a

firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c) (2000) (Count Two).      He received a sentence of 120 months’

imprisonment on Count One and 84 months on Count Two to run

consecutively.

            Kearney’s counsel has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), stating that he has

concluded     there   are   no   meritorious   issues   for   appeal,   but

questioning whether the district court erred in sentencing Kearney

to a seven year mandatory minimum sentence under § 924(c) on Count

Two for brandishing a weapon when he was advised of a five-year

mandatory minimum sentence at the plea hearing and was not advised

of the potential two-year increase for brandishing a weapon, and

whether the sentence was imposed consistent with United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005), and was reasonable.

Kearney filed a pro se supplemental brief, arguing that his plea

was involuntary, the district court failed to comply with the

requirements of Fed. R. Crim. P. 11 in the guilty plea hearing, and

that his counsel was ineffective.       Finding no reversible error, we

affirm.




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          Because Kearney did not move in the district court to

withdraw his guilty plea on the basis of Rule 11 errors, his

challenge to the adequacy of the Rule 11 hearing is reviewed for

plain error.   See United States v. Martinez, 277 F.3d 517, 525 (4th

Cir. 2002).    To meet the plain error standard:   (1) there must be

an error; (2) the error must be plain; and (3) the error must

affect substantial rights.   Id.   If the three elements of the plain

error standard are met, the court may exercise its discretion to

notice error only if the error seriously affects “the fairness,

integrity, or public reputation of judicial proceedings.”     United

States v. Olano, 507 U.S. 725, 732-37 (1993)(citation omitted).

          At the plea hearing, the district court informed Kearney

that the statutory mandatory minimum for the firearm offense was

five years to a maximum of life imprisonment.       Kearney was not

advised until the presentence report was prepared that he actually

faced a mandatory minimum sentence of seven years’ imprisonment on

Count Two because he “brandished” the weapon.      We find that the

district court erred in misstating the mandatory minimum sentence

and that the error was plain.*     See Fed. R. Crim. P. 11(b)(1)(I)

(requiring district court to inform defendant in open court about



     *
      The district court also stated that the maximum term of
imprisonment on Count One was twenty-five years under § 2114(a).
However, the probation officer determined the maximum term to be
ten years’ imprisonment. Because Kearney was sentenced to a lesser
term than the twenty-five-year maximum erroneously stated by the
district court, we find his substantial rights were not affected.

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the applicable mandatory minimum sentences).         Kearney bears the

burden of demonstrating a reasonable probability that, but for the

error, he would not have pled guilty.      United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004).     Kearney does not allege that he

would not have pled guilty absent the court’s error.           Moreover,

even after learning of the court’s error following preparation of

the presentence report, Kearney did not move to withdraw his guilty

plea based on the error.       The record does not otherwise suggest

that the error likely affected Kearney’s decision to plead guilty

in this case.     Kearney was advised that the sentencing range was

between five years and life, and he received seven years, far less

than he knew was possible.      Finally, there is no genuine dispute

over whether Kearney in fact brandished the gun.      At no point below

or on appeal has Kearney alleged that he did not, and the factual

basis proffered by the Government for the plea made clear that the

brandishment was crucial to the execution of the crime in this

case.

          Next,    Kearney’s   counsel   questions   whether   Kearney’s

sentence under the advisory guidelines was imposed consistent with

Hughes and was reasonable.     Kearney’s sentence, which was imposed

within the advisory guideline range and within the statutory

mandatory minimums and maximums, was presumptively reasonable. See

United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006), cert.

denied, 126 S. Ct. 2309 (U.S. May 22, 2006) (No. 05-10474).            A


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defendant can only rebut this presumption by showing the sentence

is unreasonable when measured against the § 3553(a) factors.

United States v. Montes-Pineda, 445 F.3d 375 (4th Cir. 2006).                A

sentence may be procedurally unreasonable when the district court

provides an inadequate statement of reasons.             United States v.

Moreland, 437 F.3d 424, 434 (4th Cir. 2006), cert. denied, 126 S.

Ct. 2054 (U.S. May 15, 2006) (No. 05-10393).         However, a court need

not “robotically tick through § 3553(a)’s every subsection” or

“explicitly discuss every § 3553(a) factor on the record.”              United

States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).

       A “specific reference [at sentencing] to § 3553(a) factors

[is] certainly not required.”          Johnson, 445 F.3d at 345.         This

court has further held that “[t]he district court need not discuss

each factor set forth in § 3553(a) ‘in checklist fashion’; ‘it is

enough to calculate the range accurately and explain why (if the

sentence lies outside it) this defendant deserves more or less.’”

Moreland, 437 F.3d at 432 (quoting United States v. Dean, 414 F.3d

725,   729   (7th   Cir.   2005)).     Here,   the   district   court    asked

Kearney’s counsel to discuss mitigating factors.            Counsel argued

that Kearney’s extensive cooperation following his arrest was a

mitigation factor.     The district court repeatedly referred to the

guidelines as advisory and to the Hughes case.                  In imposing

sentence, the district court noted that the advisory guideline

range on Count One was calculated to be 140 to 175 months’


                                     - 5 -
imprisonment, but that the sentence was capped at 120 months based

on   the    statutory     maximum.        The      court   further       noted   it   had

discretion to impose a sentence that was lower than 120 months.                        As

to Count Two, the court stated that it was bound by the mandatory

minimum 84-month sentence, although the sentence could be up to

life.      Because the 120-month sentence on Count Two was within the

sentence provided by the criminal statutes for robbery and the 84-

month consecutive sentence on Count Two was within the statutory

sentence for brandishing a weapon during a crime of violence, we

find that Kearney’s sentence was reasonable.

              Kearney argues in his pro se supplemental brief that his

counsel was ineffective.          Because the record does not conclusively

establish ineffective assistance of counsel, we find these claims

are not cognizable on direct appeal. See United States v. DeFusco,

949 F.2d 114, 120-21 (4th Cir. 1991) (holding that claims of

ineffective assistance of counsel must be brought in a collateral

proceeding under 28 U.S.C. § 2255 (2000), unless it conclusively

appears     from    the   face    of   the      record     that    his    counsel     was

ineffective).

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Kearney’s conviction and sentence. We

also    grant      Kearney’s     motion      for    limited       dismissal      of   his

supplemental brief and deny Kearney’s counsel’s motion to withdraw


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as counsel.    This court requires that counsel inform Kearney, in

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

States for further review.    If Kearney 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 Kearney. 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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