                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4036



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHRISTOPHER HENRY HAYNES,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-04-43)


Submitted:   September 20, 2006           Decided:   October 3, 2006


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


Affirmed by unpublished per curiam opinion.


M. Victoria Jayne, Hickory, North Carolina, for Appellant. Amy E.
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Christopher Henry Haynes appeals his 188-month prison

sentence resulting from his conviction for conspiracy to distribute

methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) (2000).

Haynes’ attorney has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), acknowledging the absence of any

meritorious issues on appeal but raising the issue of whether the

Government breached the plea agreement by submitting objections.

Haynes filed a pro se supplemental brief raising claims regarding

the reasonableness of the sentence enhancements and ineffective

assistance of counsel.      Finding no reversible error, we affirm.

            Haynes contends that the Government breached the plea

agreement     when   it   sought    a    six     level    enhancement   for   the

manufacture of methamphetamine creating a substantial risk of harm

to a minor under U.S. Sentencing Guidelines Manual § 2D1.1(b)(6)(C)

(2005).     The written terms of the plea agreement did not prevent

the Government from seeking sentencing enhancements not stated

within the plea agreement.         Haynes attempted to add such a clause,

but the Government did not agree and crossed it out of the plea

agreement.    At the plea hearing, Haynes did not object and agreed

to   the   Government’s   description       of    the    plea   agreement.    The

Government did not breach the plea agreement when it sought the

enhancement.




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          Haynes contends that the district court was unreasonable

in applying the enhancement.     After United States v. Booker, 543

U.S. 220 (2005), a sentencing court is no longer bound by the range

prescribed by the sentencing guidelines, but still must calculate

and consider the guideline range as well as the factors set forth

in 18 U.S.C. § 3553(a) (2000).     See United States v. Hughes, 401

F.3d 540, 546 (4th Cir. 2005).         We will affirm a post-Booker

sentence if it is both reasonable and within the statutorily

prescribed range.   Id.

          Haynes’   two-year     old    son   tested    positive   for

methamphetamine and injured himself with lye. Haynes contends that

other medications caused the positive test, but the laboratory

tested for other medications, such as amphetamine, and those tests

were negative.   Haynes also contends that the test is inaccurate,

but has no evidence to the contrary.          Based on the positive

methamphetamine test and the child’s lye injuries, the district

court reasonably found by a preponderance of the evidence that

Haynes created a substantial risk to a minor.     The district court

reasonably applied the six offense level increase.

          The district court properly calculated the sentencing

guideline range of 188-235 months’ imprisonment.       As Haynes’ 188-

month prison sentence is within the properly calculated guideline

range, it is presumptively reasonable. United States v. Green, 436

F.3d 449, 457 (4th Cir. 2006).         Haynes has not rebutted that


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presumption   as   the   district    court   appropriately   treated   the

guidelines as advisory, considered the guideline range, and weighed

the relevant factors under 18 U.S.C. § 3553(a) (2000).

          Haynes finally contends that his two trial attorneys were

ineffective in negotiating the plea agreement, not withdrawing his

guilty plea, and acting unprofessionally.         Claims of ineffective

assistance of counsel are not cognizable on direct appeal unless

the record conclusively establishes ineffective assistance. United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).               Our

review of the record reveals that Haynes has failed to meet the

high burden necessary to raise ineffective assistance of counsel on

direct appeal.

          Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal.       Accordingly, we affirm

the judgment of the district court.           This court requires that

counsel inform her 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 materials before the court and

argument would not aid the decisional process.



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        AFFIRMED




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