                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4737


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

HENRY LEE CLYBURN,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:04-cr-00148-FDW-1)


Submitted:   February 24, 2011            Decided:   March 17, 2011


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


Affirmed by unpublished per curiam opinion.


Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Upon      revocation     of   Henry        Lee     Clyburn’s         supervised

release,     which    was   imposed      as      part       of    his     sentence          for

possession of a firearm by a convicted felon, the district court

sentenced Clyburn to twenty-four months’ imprisonment and twelve

months of supervised release.                  Clyburn appeals this sentence,

asserting five grounds for vacatur: first, that the district

court erred in vacating an eleven-month sentence it proposed and

proceeding      to    address      Clyburn’s         request       to     withdraw          his

admissions      to   certain    violations       of     his      supervised          release;

second,    that      Clyburn’s     trial       counsel        rendered        ineffective

assistance; third, that the district court acted vindictively in

sentencing Clyburn to twenty-four months’ imprisonment; fourth,

that the twenty-four month sentence is plainly unreasonable; and

fifth, that the district court erred in imposing the additional

twelve-month term of supervised release.                 We affirm.



                                         I.

           Clyburn pled guilty to one count of possession of a

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

§ 922(g)(1)      (2006),    and    was   sentenced          in    November           2005    to

fifty-seven      months’    imprisonment        followed         by     three    years       of

supervised      release.          Clyburn      began     serving         his     term        of

supervised release on August 7, 2009.                    In May 2010, Clyburn’s

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probation       officer          petitioned       the     district        court      to     revoke

Clyburn’s       supervised         release,       alleging        in    the    petition       that

Clyburn       had    violated      his    supervised          release     by     traveling      to

Florida without prior authorization (violation four) and being

charged in state court with four criminal offenses: an April

2010    simple        assault       (violation           one),     aiding      and        abetting

(violation two), possession of marijuana (violation three), and

driving with a revoked license and giving fictitious information

to an officer (violation five).                       In an addendum to the petition,

the probation officer alleged that Clyburn had further violated

his    supervised       release      by     being      charged     in    state     court      with

three additional criminal offenses: resisting a public officer

(violation          six),    lacking      an      operator’s           license    and       giving

fictitious          information      to     an    officer        (violation       seven),      and

simple assault (violation eight).

               At the revocation hearing, counsel for the Government

moved    to    dismiss      violations           three    and    five    and     informed      the

district court that, in exchange for Clyburn’s guilty plea to

violation       one,     the      Government          would     dismiss       violation       two.

Clyburn’s       attorney         informed      the     district        court     that      Clyburn

would admit violations one, four, six, seven, and eight, and the

district court found that Clyburn had violated his supervised

release.        The court calculated the advisory policy statement

range     at    five        to     eleven        months’      imprisonment,          see      U.S.

                                                  3
Sentencing Guidelines Manual (“USSG”) §§ 7B1.1(a)(3), (b), p.s.,

7B1.4(a),     p.s.     (2009),     and     heard      argument     from       counsel,

allocution from Clyburn, and the unsworn statement of the victim

of    the   simple    assault     at    issue   in    violation        one.      After

discussing     relevant       sentencing      factors,     the    district       court

announced a proposed sentence of eleven months’ imprisonment,

followed by twenty-five months of supervised release.                          As the

court was advising Clyburn of his appellate rights, Clyburn’s

counsel interrupted and informed the court that Clyburn wished

to withdraw his admissions to violations one and eight.

             The     district     court    proposed      that     the     Government

present its evidence and admonished Clyburn that, as a result of

the withdrawal of his admission of guilt to violation one, the

agreement with the Government with respect to its dismissal of

violation two was no longer binding.                   The court also advised

Clyburn and ensured that he understood that it was no longer

bound by its proposed sentence and that he faced a statutory

maximum revocation sentence of twenty-four months’ imprisonment.

The    Government     dismissed     violation      eight    and    presented       the

testimony of three witnesses pertaining to the assault at issue

in violation one.         After hearing this testimony and argument

from counsel, the district court found that Clyburn committed

violations    one,     two,     four,    six,   and    seven     and    revoked   his

supervised release.           The court again calculated the advisory

                                          4
policy statement range at five to eleven months’ imprisonment

and   sentenced      Clyburn    to   twenty-four         months’    imprisonment

followed by twelve months of supervised release.                     This appeal

followed.



                                     II.

            Clyburn claims that the district erred in vacating the

eleven-month prison sentence.         In Clyburn’s view, the court, by

announcing the proposed sentence of eleven months’ imprisonment,

ascertaining that no party objected to that sentence, and then

immediately   thereafter       advising    him   of   his    appellate     rights,

imposed a revocation sentence of eleven months’ imprisonment.

Having imposed such a sentence, the court, Clyburn contends,

should have then adjourned the revocation proceeding and erred

by vacating the eleven-month sentence and proceeding to address

his request to withdraw his admissions to violations one and

eight.

            Because Clyburn did not object to these actions in the

district    court,     we   review    this       claim      for    plain   error.

See Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009).

To prevail under this standard, Clyburn must establish that an

error was made, is plain, and affected his substantial rights.

Id. at 1428-29.        In the sentencing context, an error affects

substantial rights if, absent the error, a lower sentence would

                                      5
have been imposed.              United States v. Knight, 606 F.3d 171, 178

(4th Cir. 2010).

               We conclude that Clyburn fails to make the required

showing.        His      assertion        that    the     district       court    imposed     an

eleven-month prison sentence is simply incorrect.                                Rather, the

court merely announced a proposed sentence of eleven months’

imprisonment.            That the court announced a proposed sentence and

then made a seriatim announcement of Clyburn’s appellate rights

does    not,       without      more,     amount        to    the     imposition      of    that

proposed sentence.              Because the district court did not impose an

eleven-month        prison       term,     Clyburn’s          claim    that     the   district

court erred in vacating that term and proceeding to address his

request to withdraw his admissions to violations one and eight

is without merit.            Clyburn thus fails to show error — plain or

otherwise      —    by    the    district        court,      and    this    claim     therefore

fails.



                                             III.

               Next,      Clyburn    suggests         that      trial      counsel    rendered

ineffective        assistance.          Claims       of      ineffective      assistance       of

counsel generally are not cognizable on direct appeal.                                     United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997).                                  Rather, to

allow for adequate development of the record, a defendant must

bring    his    claim      in    a   28    U.S.C.A.          § 2255     (West    Supp.     2010)

                                                 6
motion.     Id.          An exception exists where the record conclusively

establishes              ineffective          assistance.               United       States         v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

               To       succeed       on    his     claim,       Clyburn      must       show     that

(1) trial counsel’s performance was constitutionally deficient

and (2) such deficient performance was prejudicial.                                      Strickland

v. Washington, 466 U.S. 668, 687-88, 692 (1984).                                   To satisfy the

performance prong, Clyburn must demonstrate that trial counsel’s

performance fell below an objective standard of reasonableness

under    “prevailing             professional           norms.”         Id.    at     688.         The

prejudice prong is satisfied if Clyburn can demonstrate that

“there     is       a    reasonable          probability         that,       but     for    [trial]

counsel’s unprofessional errors, the result of the proceeding

would have been different.”                   Id. at 694.

               Clyburn asserts that, by informing the district court

that he objected to and wished to withdraw his admissions to

violations       one       and    eight,      trial       counsel       rendered      ineffective

assistance          by    “sell[ing]          him       out    to”    the     district          court.

Clyburn,        however,         fails       to     explain       how     counsel’s         act     of

informing       the       district         court    of    Clyburn’s       position         on    those

violations       amounts         to    performance            falling    below      an     objective

standard of reasonableness under prevailing professional norms.

Moreover, he does not suggest that, but for counsel’s error, the

result    of     the      revocation         hearing          would   have    been       different.

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Accordingly, because ineffective assistance of counsel does not

conclusively appear on this record, this claim is not cognizable

in this appeal.



                                        IV.

            Clyburn also claims that the district court’s decision

to impose the twenty-four month prison sentence was vindictive.

More    specifically,         he    claims    that      the    district     court’s

sentencing decision was motivated by a desire to punish him for

expressing      his     unhappiness      with     the     eleven-month       prison

sentence.       “[I]t    is    beyond   doubt    that    a    sentence    enhanced,

whether before or after commencement of service, because of the

vindictiveness or other plainly improper motive of the trial

court   would    be     fundamentally        unfair     and . . . den[ies]     the

defendant due process.”            United States v. Lundien, 769 F.2d 981,

987     (4th     Cir.         1985).     Generally,           however,     judicial

vindictiveness will not be presumed, and the burden remains with

the defendant to prove actual vindictiveness.                     See Alabama v.

Smith, 490 U.S. 794, 799 (1989).

            We find no evidence in the record that the district

court acted vindictively in sentencing Clyburn to the twenty-

four month prison term.             After Clyburn withdrew his admissions

to violations one and eight, the district court ensured that he

understood that the eleven-month sentence was only a proposed

                                         8
sentence it was not bound to impose.                               Thus, any expectation

Clyburn may have had as to the length of his revocation sentence

had not crystallized such that it would be unfair to defeat it

by allowing the court to hear the Government’s evidence on those

violations Clyburn belatedly contested.                            See Lundien, 769 F.2d

at 987.    Moreover, as the district court explained, it imposed

the    twenty-four     month        sentence         not      to    punish        Clyburn    for

withdrawing    his     admissions,          but       because        that        sentence    was

appropriate    in    light     of    relevant         18      U.S.C.      § 3553(a)     (2006)

sentencing factors applicable to revocation sentences.

           While Clyburn is correct that the district court based

its    sentencing    decision         in    part         on    his        behavior    at     the

revocation     hearing,      a      district         court         may,     in    imposing     a

revocation     sentence,            properly          consider            the      defendant’s

characteristics        and       history.                18        U.S.C.        § 3553(a)(1),

18 U.S.C.A.    § 3583(e)         (West     2006      &     Supp.     2010).         Here,    the

district court did just that, making note of Clyburn’s criminal

history and failure to show remorse by admitting his guilt on

violation one, and the court’s assessment that Clyburn initially

agreed to plead guilty to the violation only because he expected

that   doing   so   would    result        in    a    favorable           sentence    and    not

because he was guilty of the violation.                              Because the record

demonstrates valid reasons for the court’s imposition of the

twenty-four    month    sentence,          there      is      no    basis    from    which    to

                                             9
presume that the court acted with vindictiveness or any other

improper motive in imposing the sentence.                         See Smith, 490 U.S.

at 799.     Accordingly, this claim fails.



                                               V.

               Clyburn     also    summarily        claims       that    the       twenty-four

month    revocation        sentence      is    unreasonable.            This       court       will

affirm a sentence imposed after revocation of supervised release

if it is within the applicable statutory maximum and is not

“plainly unreasonable.”             United States v. Crudup, 461 F.3d 433,

437,     439-40     (4th     Cir.       2006).         In    determining            whether       a

revocation sentence is “plainly unreasonable,” we first assess

the    sentence     for    unreasonableness,           “follow[ing]        generally            the

procedural and substantive considerations that we employ in our

review    of    original     sentences.”              Id.   at    438.         A    revocation

sentence       is   procedurally         reasonable         if    the    district              court

considered the Guidelines’ Chapter 7 advisory policy statements

and the 18 U.S.C. § 3553(a) factors that it is permitted to

consider in a supervised release revocation case.                                  Id. at 440.

A     revocation       sentence     is     substantively           reasonable           if      the

district       court      stated    a     proper       basis      for    concluding             the

defendant       should     receive       the     sentence        imposed,          up     to    the

statutory       maximum.           Id.         Only    if    a     sentence          is        found

procedurally or substantively unreasonable will we “then decide

                                               10
whether    the    sentence        is    plainly         unreasonable.”                Id.    at    439

(emphasis omitted).             A sentence is “plainly” unreasonable if it

is clearly or obviously unreasonable.                      Id.

            Clyburn         fails      to    show       that    his    twenty-four            month

prison sentence is plainly unreasonable.                          It is undisputed that

the sentence does not exceed the applicable statutory maximum of

two   years’     imprisonment,          see        18   U.S.C.     § 3559(a)(3)              (2006);

18 U.S.C.A.       § 3583(e)(3),             and     Clyburn      has    not       asserted          or

demonstrated          any       claim        of         procedural          or        substantive

unreasonableness           in   the     sentence.              Accordingly,           this    claim

likewise fails.



                                              VI.

            Finally, Clyburn claims that the district court erred

in    imposing       the    additional        twelve-month          term         of    supervised

release.     Because Clyburn did not object to the imposition of

the   additional       term      of    supervised         release      at    the       revocation

hearing, we review this claim for plain error.                                    See Puckett,

129 S. Ct. at 1428-29.

            Section 3583(h) of Title 18 of the United States Code

limits    the    maximum        term    of        supervised      release         imposed         upon

revocation      to    “the      term    of    supervised         release         authorized         by

statute for the offense that resulted in the original term of

supervised       release,       less    any        term    of    imprisonment           that       was

                                                  11
imposed upon revocation of supervised release.”                                18 U.S.C.A.

§ 3583(h).      Clyburn’s gun possession conviction is a Class C

felony, see 18 U.S.C. §§ 924(a)(2), 3559(a)(3) (2006), and three

years   is    the     statutory       maximum       term    of     supervised            release

authorized for such an offense, see 18 U.S.C.A. § 3583(b)(2).

Applying      the    requirement        in        § 3583(h)       that       any    term     of

imprisonment        imposed    upon    revocation          be    subtracted         from    the

statutorily-authorized term of supervised release, the district

court here was permitted to impose up to a one-year term of

supervised      release       upon    revocation.               That    is     exactly      the

sentence the district court imposed.                        This sentence complies

with    the    applicable        statutes          and,    contrary          to     Clyburn’s

argument, the relevant policy statement, see USSG § 7B1.3(g)(2),

p.s.



                                         VII.

              Accordingly, we affirm the district court’s judgment

and deny as moot Clyburn’s motion to expedite our decision.                                   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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