                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4312



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KENON DURELL SWEAT,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:05-cr-00280-NCT-3)


Submitted:   July 23, 2007                 Decided:   August 28, 2007


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, P.A., Greensboro, North
Carolina, for Appellant.      Anna Mills Wagoner, United States
Attorney, Kearns Davis, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           A jury convicted Kenon Durell Sweat of bank robbery, in

violation of 18 U.S.C. § 2113(a) (2000) (Count One); armed bank

robbery, in violation of 18 U.S.C. § 2113(a), (d) (Count Two);

possession and brandishing of a firearm in furtherance of a bank

robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000) (Count

Three); and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2000) (Count Four).

He was sentenced to 360 months’ imprisonment.           Sweat appealed his

convictions.    Finding no error, we affirm.

           Counsel contends, inter alia, there was insufficient

evidence to convict Sweat on Count Four because there was no

evidence the firearm affected interstate commerce.             Counsel also

raised separate claims in accordance with Anders v. California, 386

U.S. 738 (1967), concluding the claims are not meritorious, but

questioning whether the district court abused its discretion in

failing to allow the jury to consider evidence that would tend to

show   Sweat   did   not   incriminate   himself   or   seek   to   influence

witnesses after his arrest and whether trial counsel provided

ineffective assistance.       Sweat was advised of his right to file a

pro se supplemental brief, but has not done so.

           Sweat asserts that the evidence was insufficient to

convict him on Count Four because the Government failed to prove

the firearm affected interstate commerce.          Sweat himself, however,


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stipulated that the firearm “was possessed in and affect[ed]

interstate commerce.”       (JA 325-26).        Sweat’s stipulation relieved

the Government of any obligation to prove that element of Count

Four.    See United States v. Clark, 993 F.2d 402, 405-06 (4th Cir.

1993).   Nevertheless, Sweat contends that this stipulation was the

result of ineffective assistance of counsel.                Yet, because the

record does not conclusively establish ineffective assistance of

counsel, we find that Sweat’s ineffective assistance claim is not

cognizable on direct appeal.           See United States v. DeFusco, 949

F.2d    114,    120-21   (4th   Cir.    1991)    (holding   that   claims   of

ineffective assistance of counsel must be brought in a collateral

proceeding under 28 U.S.C. § 2255 (2000), unless it conclusively

appears from the face of the record that counsel was ineffective).

            Sweat also contends that his convictions for both bank

robbery and felon in possession of a firearm is multiplicious and

“could” violate the Double Jeopardy Clause.            We find that because

the offenses have different elements, they are not multiplicious

and do not constitute double jeopardy.            See Blockburger v. United

States, 284 U.S. 299, 304 (1932).

               Counsel first questions in the Anders portion of the

brief, whether the district court erred in excluding evidence that

would purportedly show Sweat did not incriminate himself and did

not seek to influence witness testimony.            The determination of the

probative and prejudicial value of evidence is left to the sound


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discretion of the trial court and will not be disturbed absent

extraordinary circumstances.       See United States v. MacDonald, 688

F.2d 224, 227-28 (4th Cir. 1982).      This court reviews errors in the

admission or exclusion of evidence for harmless error.            See United

States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981).                  After a

thorough review of the record, we conclude there is no reversible

error in the district court’s evidentiary rulings.

           Counsel also questions whether trial counsel provided

ineffective assistance. For the same reason that we reject Sweat’s

ineffective assistance claim with respect to the stipulation on

Count Four, we find the additional ineffective assistance claims

are also not cognizable on direct appeal.          See DeFusco, 949 F.2d at

120-21.

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   We therefore affirm Sweat’s convictions and sentence.

This court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further review.    If the client 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 the client.      We dispense with oral argument because

the facts and legal contentions are adequately presented in the


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materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                                                    AFFIRMED




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