                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4349


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES EDWARD RHODES,

                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-00217-JAB-1)


Submitted:   March 14, 2011                 Decided:   April 12, 2011


Before MOTZ, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP,
Greensboro, North Carolina, for Appellant. John W. Stone, Jr.,
Acting United States Attorney, Terry M. Meinecke, Assistant
United   States  Attorney,   Greensboro,  North   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charles        Edward     Rhodes        pled     guilty     to        unlawful

possession    of    a    firearm      by     a     convicted       felon,    18     U.S.C.

§ 922(g)(1) (2006), and was sentenced within the guideline range

to a term of fifty-five months of imprisonment.                        Rhodes appeals

his sentence, contending that his sentence should be vacated

because     (1)    the     district        court     failed     to     recognize         its

discretion    to     depart       below     the     advisory       guideline       range,

(2) defense counsel rendered ineffective assistance because he

failed to request a departure under U.S. Sentencing Guidelines

Manual § 5K2.11 (2009) (Lesser Harms), and (3) resentencing is

necessary    to    allow    the     district       court   to   reconsider         the    18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) sentencing factors

in light of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).

We affirm.

            Three    firearms       were     found    in     Rhodes’    home       when    a

search    warrant    was    executed       there     based    on     reports      of   drug

transactions.       Rhodes maintained that he possessed the firearms

only for protection after racist graffiti was painted on the

rural road in front of his house.                  At sentencing, he requested a

sentence at the low end of the guideline range of 51-63 months.

            When a sentencing court refuses to depart below the

guideline range, its decision is not appealable unless the court

failed to understand its authority to depart.                        United States v.

                                            2
Brewer, 520 F.3d 367, 371 (4th Cir. 2008).                        Here, Rhodes never

requested a departure.               Therefore, we review the sentence under

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

States, 552 U.S. 38, 41 (2007).                   Rhodes does not claim that the

district    court       committed      any    procedural      error.         This   court

presumes that a sentence imposed within a properly calculated

guidelines range is substantively reasonable.                        United States v.

Go,   517   F.3d       216,   218    (4th    Cir.    2008);    see    Rita    v.    United

States,     551    U.S.       338,     346-56       (2007)    (upholding      appellate

presumption of reasonableness for within-guidelines sentence).

After review of the record, we conclude that Rhodes has failed

to overcome the presumption of reasonableness for his within-

guidelines sentence.

            In     a    footnote      to    his   first   claim    of    error,     Rhodes

asserts that his trial attorney was ineffective in failing to

request a downward departure.                 Claims of ineffective assistance

of counsel are generally not cognizable on direct appeal unless

the   record      conclusively         establishes        ineffective        assistance.

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

In this case, the record does not conclusively show that Rhodes’

counsel was ineffective.

            After Rhodes was sentenced, the Supreme Court held, in

McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010), that

the individual Second Amendment right to bear arms recognized in

                                              3
District      of   Columbia     v.   Heller,     554      U.S.    570    (2008),     is    a

fundamental right applicable to the states under the Fourteenth

Amendment.         Rhodes argues that the district court should have

the opportunity to reconsider, in a resentencing hearing, the

§ 3353(a) factors affecting his sentence in light of McDonald.

We conclude that McDonald did not change the legal landscape to

the extent that it requires resentencing in Rhodes’ case because

it   merely    extended   to     the    states      the   principle      announced        in

Heller before Rhodes was sentenced.

              We    therefore    affirm       the    sentence       imposed    by     the

district    court.      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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