                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 11-4037


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TONY LEE MILLER,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:10-cr-00028-IMK-1)


Submitted:   October 28, 2011             Decided:   November 16, 2011


Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Brandon S.
Flower, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tony Lee Miller appeals his conviction, following a

jury     trial,        of    possessing         a     prohibited          object          while

incarcerated, in violation of 18 U.S.C. § 1791(a)(2) (2006), and

the resulting thirty-month sentence.                   Counsel filed a brief in

accordance      with    Anders       v.   California,        386      U.S.    738       (1967),

certifying that there are no meritorious issues for appeal but

asking   this     Court      to   review    whether        the     district        court     had

jurisdiction over Miller.                 In his pro se supplemental brief,

Miller argues that the district court lacked jurisdiction, that

he   received     ineffective        assistance       of    counsel,         and    that     the

district   court       committed      sentencing       errors.           The       Government

filed a responsive brief.

            “‘Subject-matter              jurisdiction           in      every          federal

criminal prosecution comes from 18 U.S.C. § 3231 and there can

be no doubt that Article III permits Congress to assign federal

criminal prosecutions to federal courts.’”                            United States v.

Hartwell, 448 F.3d 707, 716 (4th Cir. 2006) (quoting Hugi v.

United States, 164 F.3d 378, 380 (7th Cir. 1999).                             In a federal

criminal   prosecution,           “[p]ersonal       jurisdiction         is    supplied       by

the fact that [the defendant] is within the territory of the

United   States.”           United    States    v.    Burke,       425   F.3d       400,     408

(7th Cir. 2005).            Here,    Miller     was    incarcerated           in    a    United

States   penitentiary         and    charged    with       violating      a    law      of   the

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United States, 18 U.S.C. § 1791.                 Thus, the district court had

personal    and      subject      matter      jurisdiction          over    Miller’s

prosecution.

            Next,        Miller      argues            that      trial     counsel’s

representation was constitutionally deficient because he failed

to   contest      the    district    court’s           jurisdiction.        Miller’s

appellate   counsel      addressed    multiple          grounds    on    which   trial

counsel might have rendered ineffective assistance.

            To establish ineffective assistance of counsel, Miller

must show that counsel’s performance fell below an objective

standard    of      reasonableness,        and     that       counsel’s    deficient

performance      resulted   in    prejudice       to    Miller.      Strickland    v.

Washington, 466 U.S. 668, 687-88 (1984).                      Claims of ineffective

assistance of counsel are generally not cognizable on direct

appeal, unless counsel’s “ineffectiveness conclusively appears

from the record.”         United States v. Baldovinos, 434 F.3d 233,

239 (4th Cir. 2006).         Trial counsel’s ineffectiveness does not

conclusively appear on this record.                     Accordingly, Miller must

bring his claims under 28 U.S.C.A. § 2255 (West Supp. 2011) in

order to allow for adequate development of the record.                            See

United   States     v.   Baptiste,     596       F.3d     214,    216-17   n.1   (4th

Cir. 2010).

            Turning to Miller’s sentence, we review the imposed

sentence    for     reasonableness,    applying          an     abuse-of-discretion

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standard.      Gall v. United States, 552 U.S. 38, 51 (2007); United

States   v.    Llamas,      599    F.3d    381,      387    (4th Cir. 2010).             This

review     requires      consideration          of     both      the    procedural        and

substantive reasonableness of the sentence.                        Gall, 552 U.S. at

51.      In    determining         procedural        reasonableness,         this        Court

considers     whether    the      district      court      properly     calculated         the

defendant’s advisory Guidelines range, considered the 18 U.S.C.

§ 3553(a)     factors,      analyzed       any       arguments     presented        by    the

parties,      and   sufficiently          explained        the    selected     sentence.

Gall, 552 U.S. at 51.              A sentence is reviewed for substantive

reasonableness by examining the “totality of the circumstances.”

Id.; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

We presume that a sentence within a properly determined advisory

Guidelines range is substantively reasonable.                          United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007).

              In his pro se supplemental brief, Miller argues that

the   district      court   committed       plain       error     in   assigning         three

criminal history points for a 1992 Florida conviction because he

was not represented by counsel and did not waive his right to

counsel.

              Generally,     a     defendant      may      not   collaterally        attack

prior    convictions        used     to    enhance         his    sentence.          United

States v. Bacon, 94 F.3d 158, 162 (4th Cir. 1996).                          However, in

Custis v. United States, 511 U.S. 485 (1994), the Supreme Court

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held   that    convictions     obtained          in   violation       of    the    right    to

counsel    fell   outside      the    general         rule.       Id.      at   487.       The

defendant bears the burden of proof on such claim, because “even

when   a   collateral        attack     on       a    final      conviction       rests     on

constitutional        grounds,    the        presumption         of     regularity        that

attaches to final judgments makes it appropriate to assign a

proof burden to the defendant.”                  Parke v. Raley, 506 U.S. 20, 31

(1992); see also United States v. Reyes-Solano, 543 F.3d 474,

478 (8th Cir. 2008).           Miller’s conclusory allegation that his

1992 Florida conviction was obtained in violation of his right

to counsel is insufficient to carry this burden.

              Miller also argues that counsel and the district court

prevented him from objecting to the presentence report (“PSR”).

This   contention       is    contradicted            by   the    record.          Miller’s

objections were not related to the PSR and, in any event, the

district      court   gave    Miller     ample         opportunity         to     voice    his

objections during his allocution.

              In accordance with Anders, we have reviewed the entire

record in this case and have found no other meritorious issues.

Accordingly, we affirm Miller’s conviction and sentence.                                   We

deny Miller’s motion for transcripts of the pretrial proceedings

at government expense.           This Court requires that counsel inform

Miller, in writing, of the right to petition the Supreme Court

of the United States for further review.                           If Miller requests

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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 Miller.

               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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