                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4284


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RONALD MARSHALL SIMPSON, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00106-JAB-1)


Submitted:   October 12, 2011             Decided:   October 19, 2011


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Christopher B. Shella, C. BURELL SHELLA, Durham, North Carolina,
for Appellant.    Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Ronald Marshall Simpson, Jr. appeals his conviction by

jury   and       his      subsequent       235-month         sentence    for    possessing         a

firearm      as       a     convicted         felon,    in    violation        of    18     U.S.C.

§§ 922(g)        and       924(e)    (2006).          Simpson’s      counsel    has       filed   a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), in

which he states that he could identify no meritorious issues for

appeal, but questions whether Simpson was properly sentenced as

an armed career criminal and whether his sentence is otherwise

reasonable.           Simpson has filed a pro se informal brief, raising

several issues relating to his conviction and sentence.                                    Having

reviewed     the          record,    we   affirm       the    judgment    of    the       district

court.

                 On the armed career criminal front, counsel references

the concerns recently highlighted in United States v. Simmons,

649 F.3d 237 (4th Cir. 2011) (en banc).                                 Pertinent to this

appeal,      a    defendant         is    eligible      for    the    enhanced        sentencing

provisions of the Armed Career Criminal Act only if he possesses

three previous convictions “for a violent felony or a serious

drug offense, or both, committed on occasions different from one

another.”         See 18 U.S.C. § 924(e)(1).                  For a crime to qualify as

a “violent felony,” it must be “punishable by imprisonment for a

term   exceeding            one     year.”        18    U.S.C.    §     924(e)(2)(B).             In

Simmons,         we    held       that    a    prior    North     Carolina          offense   was

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punishable for a term exceeding one year only if the particular

defendant before the court had been eligible for such a sentence

under the applicable statutory scheme, taking into account his

criminal history and the nature of his offense.                  Id.; see also

N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth North

Carolina’s structured sentencing scheme).

           Because Simpson did not raise this argument before the

district court, 1 this court’s review is for plain error.                    United

States v. Olano, 507 U.S. 725, 732 (1993); United States v.

Lynn, 592 F.3d 572, 577 (4th Cir. 2010).                    To establish plain

error, Simpson must show that “(1) an error was made; (2) the

error is plain; and (3) the error affects substantial rights.”

United   States   v.   Massenburg,    564    F.3d    337,    342–43    (4th   Cir.

2009).   “If all three of these conditions are met, an appellate

court may then exercise its discretion to notice a forfeited

error, but only if (4) the error seriously affects the fairness,

integrity,   or    public      reputation    of      judicial    proceedings.”

United   States   v.   Carr,    303   F.3d    539,    543     (4th    Cir.    2002)

(internal quotation marks, citations, and alterations omitted).


     1
       Simpson argued at sentencing only that he should not be
sentenced under § 924(e) because his prior breaking and entering
convictions were not “violent” felonies for the purposes of
§ 924(e).    This argument, however, is foreclosed by circuit
precedent.    See United States v. Thompson, 588 F.3d 197, 202
(4th Cir. 2009), cert. denied, 130 S. Ct. 1916 (2010).



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In the sentencing context, an error affects substantial rights

if the defendant can show that the sentence imposed “was longer

than   that     to    which    he   would       otherwise         be    subject.”           United

States     v.    Washington,        404    F.3d           834,    849       (4th     Cir.    2005)

(internal quotation marks and citation omitted).

              After       reviewing      the        entire       record       on     appeal,      we

conclude that Simpson cannot establish remediable plain error.

Our review of the presentence report (the “PSR”) prepared in

this case convinces us that, even in light of Simmons, Simpson

possesses at least three prior convictions for violent felonies

as defined in the Armed Career Criminal Act.                            The district court

therefore       properly      found     that        Simpson      was     eligible         for   the

enhanced        penalties       provided            for     in     §        924(e)     and      the

corresponding        Guidelines         provisions         found       in    U.S.     Sentencing

Guidelines Manual (“USSG”) § 4B1.4.

              With respect to the second area of inquiry highlighted

by   counsel,     we      review    a   sentence          for    reasonableness           under   a

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

States, 552 U.S. 38, 51 (2007).                      The first step in this review

requires us to inspect for procedural reasonableness by ensuring

that   the      district      court     committed          no    significant          procedural

errors,    such      as    improperly      calculating           the     Guidelines         range,

failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or

insufficiently            explaining      the        selected          sentence.            United

                                                4
States v.     Boulware,       604      F.3d   832,       837-38      (4th      Cir.    2010).

Because     Simpson    did       not   preserve      a    challenge       to    either     the

district court’s Guidelines calculations or its explanation of

its sentence, we review them for plain error.                         Fed. R. Crim. P.

52(b); Lynn, 592 F.3d at 577, 581-85.                           We then consider the

substantive reasonableness of the sentence imposed, taking into

account the totality of the circumstances.                           Gall, 552 U.S. at

51.    A sentence within a properly-calculated Guidelines range is

presumptively reasonable.              United States v. Allen, 491 F.3d 178,

193 (4th Cir. 2007).

             We have thoroughly reviewed the record and find no

error in the district court’s calculations of the applicable

Guidelines range, the allocution opportunity it gave to Simpson,

or    its   explanation      of     the    chosen     sentence       in     terms     of   the

applicable sentencing objectives.                    Nor have we identified any

reason to defeat the presumptive substantive reasonability of

the within-Guidelines sentence levied upon Simpson.                              Allen, 491

F.3d at 193.         We therefore decline to substitute our judgment

for that of the district court.

             Nor do any of the claims raised by Simpson in his pro

se    informal      brief    merit        reversal       of    the   district         court’s

judgment.      We have carefully reviewed each of the challenges

Simpson     raises    to    his    conviction       and       conclude    that    they     are

without     merit    or,    at    most,     even     crediting       Simpson’s        factual

                                              5
averments, amount to harmless error. 2                      With respect to Simpson’s

several ineffective assistance claims, such claims are generally

not cognizable on direct appeal unless the record conclusively

establishes counsel’s “objectively unreasonable performance” and

resulting prejudice.             United States v. Benton, 523 F.3d 424, 435

(4th       Cir.    2008).      To   allow      for    adequate     development     of   the

record, ineffective assistance claims should be pursued in a

motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2011).

United       States     v.    Baptiste,     596      F.3d   214,   216   n.1    (4th    Cir.

2010).        Because the record does not conclusively demonstrate

that Simpson’s trial or appellate counsel provided inadequate

representation,          we    decline    to    entertain      Simpson’s       ineffective

assistance of counsel claims on direct appeal.

                  In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.           We   therefore    affirm      the    district     court’s     judgment.

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

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

further review.              If Simpson requests that a petition be filed,

but counsel believes that such a petition would be frivolous,


       2
       To the extent that Simpson urges error with respect to the
composition of the jury, we deem his contentions to be raising a
claim for ineffective assistance of counsel, which is more
properly brought collaterally.



                                               6
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 Simpson.

            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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