                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4727



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ARCHIE FULTON MOORE,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
District Judge. (CR-03-374)


Submitted:   June 26, 2006                 Decided:   July 19, 2006


Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Anne R. Littlejohn, LAW OFFICE OF ANNE R. LITTLEJOHN, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Archie Fulton Moore pled guilty pursuant to a plea

agreement to one count of conspiracy to distribute in excess of

fifty   grams     of   cocaine   base,        in   violation   of   21    U.S.C.

§ 841(b)(1)(A) (2000).      He was sentenced to 260 months in prison

and ten years of supervised release.               On appeal, Moore’s counsel

asserts that Moore’s sentence was imposed in violation of United

States v. Booker, 543 U.S. 220 (2005).              Moore has filed a pro se

supplemental brief in which he claims that he received ineffective

assistance of counsel and that his sentence violated his rights

under the Sixth Amendment. We affirm Moore’s conviction but vacate

and remand for resentencing.

             Because Moore failed to challenge his sentence in the

district court, we review his sentence for plain error. See United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).                In Booker,

the Supreme Court held that the mandatory guidelines scheme that

provided for sentence enhancements based on facts found by the

court   by   a   preponderance   of    the    evidence   violated   the   Sixth

Amendment.       Booker, 543 U.S. at 244.            The Court remedied the

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2004) (requiring sentencing

courts to impose a sentence within the applicable guidelines

range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2004) (setting




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forth appellate standards of review for guideline issues), thereby

making the guidelines advisory.         Hughes, 401 F.3d at 546.

           We conclude that the enhancement to Moore’s sentence

based on drug quantity was error under the Sixth Amendment as

applied in Booker, because the facts supporting this enhancement

were not alleged in the indictment or admitted by Moore.*          Based on

the facts presented in the indictment, Moore was responsible for in

excess of fifty grams of cocaine base, resulting in a total offense

level of thirty-two, instead of the level thirty-five used by the

district court.    Together with a criminal history category of IV,

Moore’s guideline range would be 168 to 210 months of imprisonment.

Because Moore’s offense carried a mandatory minimum sentence of 240

months,   240   months   became   the   guideline   sentence   under   USSG

§ 5G1.1(b).     The 260-month sentence imposed does not fall within

the guidelines range calculated without the improper enhancement.

Accordingly, Moore’s sentence constitutes plain error that affects

his substantial rights and requires resentencing pursuant to Booker

and Hughes.

           As to Moore’s assertion that he received ineffective

assistance of counsel, such claims are generally not cognizable on


     *
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Moore’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

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direct appeal.   To allow for adequate development of the record, a

defendant must bring an ineffective assistance of counsel claim in

a 28 U.S.C. § 2255 (2000) motion, unless the record conclusively

establishes his rights to relief. United States v. Richardson, 195

F.3d 192, 198 (4th Cir. 1999).    We find no conclusive evidence of

ineffective assistance on the record before us.

           We therefore affirm Moore’s conviction but vacate his

sentence and remand for resentencing consistent with Booker and its

progeny.   We grant Moore’s motion to file a pro se supplemental

brief.   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 IN PART;
                                         VACATED AND REMANDED IN PART




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