                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-4424


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

ELERICO   DURAN   HOWARD,   a/k/a   Rico,   a/k/a   Freedom,   a/k/a
Duran,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:14-cr-00223-H-1)


Submitted:   May 25, 2016                       Decided:   June 6, 2016


Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Elerico        Duran    Howard      pled     guilty,        pursuant       to     a   plea

agreement, to conspiracy to possess with intent to distribute

500 grams or more of cocaine and an unspecified quantity of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2012),

and possession of a firearm by a felon, in violation of 18

U.S.C. §§ 922(g)(1), 924 (2012).                    The district court sentenced

Howard     to    144     months’         imprisonment,        and     he    now        appeals.

Appellate       counsel      has    filed    a     brief      pursuant      to     Anders v.

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

meritorious       issues      for    appeal,       but    questioning         whether         the

sentence imposed was procedurally and substantively reasonable

and whether plea counsel was ineffective.                           Howard was notified

of his right to file a pro se brief but has elected not to do

so.   We affirm.

      We    review      the    reasonableness            of   a     sentence       “under       a

deferential       abuse-of-discretion             standard.”           Gall       v.     United

States, 552 U.S. 38, 41 (2007).                     This entails review of the

procedural and substantive reasonableness of the sentence.                                    Id.

at 51.      “Procedural errors include ‘failing to calculate (or

improperly       calculating)        the     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—including

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an explanation for any deviation from the Guidelines range.’”

United    States    v.    Carter,    564    F.3d       325,    328     (4th     Cir.   2009)

(quoting Gall, 552 U.S. at 51).                 Only if the sentence is free of

“significant       procedural      error”       do    we     review    the      substantive

reasonableness of the sentence, accounting for “the totality of

the circumstances.”         Gall, 552 U.S. at 51.                  Any sentence within

a     properly     calculated       Guidelines             range      is    presumptively

substantively reasonable; this presumption is rebutted only “by

demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.”                  United States v. Dowell, 771

F.3d 162, 176 (4th Cir. 2014).

       Because Howard failed to object to the sentence imposed, it

is    reviewed      for    plain     error           only.         United       States    v.

Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015).                             “To satisfy

plain error review, the defendant must establish that: (1) there

is a sentencing error; (2) the error is plain; and (3) the error

affects his substantial rights.”                     Id.     Even if a plain error

occurred,     we   will    not   cure      the       error    unless       it    “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.”       Id.

       Our review of the record confirms that the sentence imposed

was    both   procedurally         and     substantively           reasonable.           The

district court properly calculated the Guidelines range, allowed

counsel an adequate opportunity to argue on Howard’s behalf, and

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afforded Howard his right of allocution.                               Although the district

court’s       explanation            for     the    sentence       was     brief,       given    the

straightforward and conceptually simple nature of the arguments

and     the        within-Guidelines                sentence       imposed,       the      court’s

explanation was sufficient.                       See United States v. Hernandez, 603

F.3d 267, 271-72 (4th Cir. 2010).

       As to the substantive reasonableness of the sentence, the

record    does          not    reveal       any    factors       that    would    overcome       the

presumption of reasonableness afforded to the within-Guidelines

sentence       imposed.              Although       Howard     argues     that    the     district

court    erred          in    attributing         more    than    the     equivalent      of    1000

kilograms          of    marijuana         to     him,   we    conclude     that    Howard       has

waived    this          argument       by       withdrawing       it    below.      See     United

States v. Robinson, 744 F.3d 293, 298-99 (4th Cir. 2014).

       Finally,           Howard’s         claim     of       ineffective        assistance       of

counsel is only cognizable on direct appeal if it conclusively

appears       on    the       record    that       counsel     was      ineffective.        United

States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014).                                            To

succeed on a claim of ineffective assistance of counsel, Howard

must    show       that:       (1)    “counsel’s         representation          fell    below    an

objective       standard         of    reasonableness”;            and    (2) “the       deficient

performance prejudiced the defense.”                             Strickland v. Washington,

466 U.S. 668, 687-88 (1984).                        In the context of a guilty plea,

to    satisfy           the    second       prong    a    defendant        must    establish       a

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reasonable probability that, but for counsel’s errors, he would

have “insisted on going to trial.”              Hill v. Lockhart, 474 U.S.

52,   59   (1985).      The   record   does     not    establish   ineffective

assistance of counsel.         Therefore, this claim is not cognizable

on direct appeal and should be raised, if at all, in a 28 U.S.C.

§ 2255 (2012) motion.

      In   accordance   with    Anders,    we   have    reviewed   the   entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm Howard’s convictions and sentence.

This court requires that counsel inform Howard, in writing, of

the right to petition the Supreme Court of the United States for

further review.      If Howard 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 Howard.

      We dispense with oral argument because the facts and legal

contentions   are    adequately    presented     in    the   materials   before

this court and argument would not aid the decisional process.



                                                                      AFFIRMED




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