                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4010


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DEMOIA OMAR DAVIS, a/k/a Moe,

                  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. (3:06-cr-00363-RJC-2)


Submitted:    September 18, 2009            Decided:   October 9, 2009


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph M. Lee, Charlotte, North Carolina, for Appellant. Mark
Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Demoia Omar Davis appeals his 142-month sentence upon

conviction of conspiracy to possess with intent to distribute

cocaine, cocaine base, and marijuana, in violation of 21 U.S.C.

§ 846 (2006); two counts of possession with intent to distribute

cocaine   base,     in   violation    of       21    U.S.C.       §   841(a)(1)      (2006);

possession    of    a    firearm   during           and    in    relation       to   a   drug

trafficking offense, in violation of 18 U.S.C. § 924(c) (2006);

and possession of a firearm by a prohibited person, in violation

of 18 U.S.C. § 922(g)(9) (2006).                    Davis’s attorney has filed a

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

certifying that there are no meritorious issues for appeal but

arguing that trial counsel was ineffective in failing to object

to the probation officer’s purported use of the 2006 edition of

the   guidelines     manual   in     calculating            Davis’s       offense     level.

Davis filed a pro se supplemental brief, contending that trial

counsel was ineffective not only in failing to object to the

probation officer’s errors in calculating Davis’s offense level

but also in failing to challenge the 100:1 sentencing disparity

between crack cocaine and powder cocaine.                       We affirm.

             Claims of ineffective assistance of counsel generally

are 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 ordinarily

                                           2
bring    his    claim       in   a    28   U.S.C.A.     §       2255    (West       Supp.    2009)

motion.       See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th

Cir. 1994).          An exception to this general rule exists when the

appellate            record          conclusively       establishes                  ineffective

assistance.          United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999); King, 119 F.3d at 295.

               In     order      to    succeed    on        a    claim        of     ineffective

assistance, defendant must show that:                       (1) counsel’s performance

fell    below       “prevailing       professional      norms;”          and       (2) counsel’s

deficient           performance        was    prejudicial.                    Strickland        v.

Washington, 466 U.S. 668, 687-88 (1984).                          Generally, to satisfy

the    second       prong   of    Strickland,       a   defendant         “must       show    that

there    is     a     reasonable       probability      that,           but    for    counsel’s

unprofessional errors, the result of the proceeding would have

been different.”            Strickland, 466 U.S. at 694.                       In the context

of a conviction following a guilty plea, a defendant “must show

that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted

on going to trial.”               Hill v. Lockhart, 474 U.S. 52, 59 (1985)

(footnote omitted).              Courts may bypass the performance prong and

proceed directly to the prejudice prong when it is easier to

dispose of the case for lack of prejudice.                             Strickland, 466 U.S.

at 697.



                                              3
              Here,    the       record       does      not    conclusively           demonstrate

that   counsel        was    ineffective           in     failing        to    object       to    the

calculation of the offense level.                        Rather, the record shows that

the probation officer actually did use the 2007 guidelines in

effect at the time of sentencing to accurately calculate Davis’s

offense level.          Despite the notation in the Presentence Report

(“PSR”) that the probation officer applied the 2006 version of

the guidelines, the calculated marijuana equivalency of 114.809

kilograms comports with a calculation performed using the 2007

guidelines.         Davis was found to be responsible for 7.12 grams of

cocaine   base,        4.41      grams        of       cocaine,       and     seven    grams        of

marijuana.          Under the 2006 guidelines drug equivalency table,

4.41 grams of cocaine had a marijuana equivalency of 882 grams

of marijuana and 7.12 grams of cocaine base had a marijuana

equivalency of 142.4 kilograms of marijuana.                                   U.S. Sentencing

Guidelines         Manual    (“USSG”)         § 2D1.1,         cmt.      n.10    (2006)          (drug

equivalency        tables).        When       combined         with    the     seven    grams      of

marijuana, these numbers yield a total marijuana equivalency of

143.289 kilograms of marijuana.

              By     comparison,          under          the      2007        guidelines         drug

equivalency table in effect at the time of Davis’s sentencing,

the    4.41    grams        of    cocaine          would       again     have     a     marijuana

equivalency of 882 grams of marijuana, but the 7.12 grams of

cocaine   base       would       have     a    marijuana          equivalency          of    113.92

                                                   4
kilograms of marijuana. 1     When combined with the seven grams of

marijuana, these figures yielded 114.809 kilograms of marijuana.

As this was the figure used by the probation officer in the PSR,

it is evident that the 2007 guidelines were used to calculate

Davis’s   offense   levels,   despite   the   PSR’s   narrative   to   the

contrary.    Because there was no error committed by the probation

officer, Davis’s trial counsel did not err in failing to object

to the offense level calculation. 2

            We have reviewed Davis’s pro se claims of ineffective

counsel and find them meritless.        We have examined the entire

record in accordance with the requirements of Anders and have



     1
        Because Davis’s offense involved cocaine base, USSG
§ 2D1.1, cmt. n.10(D)(i) (2007) requires the probation officer
first to determine the base offense level for the quantity of
cocaine base involved in the offense:      7.12 grams of cocaine
base yields a base offense level of twenty-four.            USSG
§ 2D1.1(c)(8) (2007). Next the probation officer calculates the
marijuana equivalency of the quantity of cocaine base using the
equivalency table found in USSG § 2D1.1, cmt. n.10(D)(i)(II)
(2007). With a base offense level of twenty-four, each gram of
cocaine base is equivalent to sixteen kilograms of marijuana.
Therefore, by multiplying 7.12 grams of cocaine base by 16
kilograms, the probation officer correctly arrived at a
marijuana equivalency of 113.92 kilograms of marijuana.
     2
       The application notes to USSG § 2D1.1 (2007) were amended
on May 1, 2008. Amendment 715 significantly revised the method
for determining the applicable offense level for cases involving
both crack cocaine and another controlled substance.       While
application of Amendment 715 may affect Davis’s sentence, this
is an issue to be raised initially in the district court
pursuant to 18 U.S.C. § 3582(c)(2) (2006). See United States v.
Brewer, 520 F.3d 367, 373 (4th Cir. 2008).



                                   5
found no meritorious issues for appeal.        We therefore affirm the

judgment   of   the   district   court.   This   court   requires    that

counsel inform Davis, in writing, of the right to petition the

Supreme Court of the United States for further review.         If Davis

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 Davis.            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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