                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4773


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAMIEN ANTWON EVANS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:13-cr-00050-FL-1)


Submitted:   April 29, 2015                   Decided:   May 12, 2015


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Damien     Antwon      Evans     pled         guilty,       pursuant          to   a    plea

agreement,      to   possession       of       a    firearm       and     ammunition          by   a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012).

The   court     sentenced     Evans       to       188    months’        imprisonment,         the

bottom of the Sentencing Guidelines range.                          Counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious grounds for appeal but

raising    as    potential      issues         whether        the       court       abused     its

discretion in denying Evans’ motion for substitute counsel and

whether    various        aspects    of    Evans’          sentence       were       erroneous,

including Evans’ designation as an armed career criminal, the

application          of      U.S.          Sentencing              Guidelines                Manual

§ 4B1.4(b)(3)(A)          (2013),    and       the       denial     of    the       motion     for

downward variance and/or departure.                        Evans has filed a pro se

supplemental brief, raising numerous issues, including whether

sentencing counsel provided effective assistance and whether the

court erred in sentencing him under the Armed Career Criminal

Act (“ACCA”).        We affirm.

      We   review      a    district       court’s         ruling        on     a    motion        to

substitute counsel for abuse of discretion.                               United States v.

Blackledge, 751 F.3d 188, 194 (4th Cir. 2014).                                Three factors

are considered in reviewing the denial of such a motion:                                      “(1)

timeliness of the motion; (2) adequacy of the court’s inquiry

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[into the factual basis of defendant’s dissatisfaction]; and (3)

whether the attorney/client conflict was so great that it had

resulted in total lack of communication preventing an adequate

defense.”          Id.    (internal     quotation       marks     omitted).               These

factors are balanced “against the district court’s interest in

the orderly administration of justice.”                   United States v. Perez,

661   F.3d   189,       191   (4th   Cir.    2011)     (internal       quotation          marks

omitted).          We    conclude     that   the      court     did    not        abuse    its

discretion, since Evans’ motion was made after the start of the

sentencing       hearing,     the    court   inquired      into       the    reasons        for

Evans’ motion and also questioned counsel before denying the

motion,    and     the   record      provides    no    evidence       of     an    attorney-

client conflict hindering communication.

       Next, counsel and Evans contest whether Evans’ designation

as    an   armed    career     criminal      was      proper.         When    considering

whether a defendant was properly sentenced as an armed career

criminal, we review the district court’s legal conclusions de

novo and its factual findings for clear error.                        United States v.

McDowell, 745 F.3d 115, 120 (4th Cir. 2014), cert. denied, 135

S. Ct. 942 (2015).              Because Evans raises this claim for the

first time on appeal, it is reviewed for plain error.                             Henderson

v. United States, 133 S. Ct. 1121, 1126-27 (2013).

       Under the ACCA, if a defendant is convicted of being a

felon in possession of a firearm and has sustained at least

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three prior convictions for violent felonies or serious drug

offenses committed on occasions different from one another, the

defendant       is     subject     to    an   enhanced    sentence.          18    U.S.C.

§ 924(e)(1) (2012).           Here, Evans pled guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

and his presentence report noted that he previously pled guilty

to four common law robbery charges, which occurred on different

occasions from one another and each resulted in a sentence of

more    than    a    year.       These     robbery    counts    constitute        violent

felonies under the ACCA.                18 U.S.C. § 924(e)(2)(B)(ii); see also

United States v. Carmichael, 408 F. App’x 769, 770-71                        (4th Cir.

2011) (No. 09-4963) (concluding that common law robbery under

North       Carolina    law   is    crime     of   violence).         Accordingly,     we

conclude that the district court correctly sentenced Evans as an

armed career criminal.

       Next, counsel questions whether the district court erred in

applying an offense level of 34 after finding by a preponderance

of the evidence that Evans possessed the firearm in connection

with a crime of violence.               See USSG § 4B1.4(b)(3)(A).           Here, the

sentencing court concluded that Evans possessed the firearm and

ammunition in connection with the state offense of feloniously

fleeing to elude arrest.                See N.C. Gen. Stat. § 20-141.5(a)-(b)

(2013).        In determining that the offense was a felony rather

than    a    misdemeanor      under      North     Carolina    law,    the   sentencing

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court     was    required      to       find    the      presence       of    two     or     more

aggravating       factors      enumerated          in    the    statute.            Id.     § 20-

141.5(b)        Based on evidence presented at sentencing, the court

found that at least two of the factors, reckless driving and

driving with his license revoked, § 20-141.5(b)(3), (5), were

present.         Evans    offered        no    evidence         to    dispute       these    two

factors.        Thus,    the   court’s         factual     findings         that     Evans   was

driving recklessly and without a license were supported by a

preponderance of the evidence and therefore were not clearly

erroneous.       See United States v. White, 771 F.3d 225, 235 (4th

Cir. 2014) (stating standard of review), cert. denied, __ U.S.

__, 83 U.S.L.W. 3743 (U.S. Mar. 23, 2015) (No. 14-8442).

       We review de novo the court’s legal conclusion that Evans

possessed a firearm in connection with a crime of violence.                                  Id.

For purposes of USSG § 4B1.4(b)(3)(A), a crime of violence is

“any    offense     under       federal         or      state        law,    punishable       by

imprisonment for a term exceeding one year, that . . . involves

conduct    that    presents         a    serious        potential      risk     of    physical

injury to another.”            USSG § 4B1.2(a)(2).                   Coupled with the two

aggravating       factors,      Evans’         actions         constituted         the      state

criminal offense of felonious fleeing to elude arrest under N.C.

Gen. Stat. § 20-141.5(a)-(b).                  The Supreme Court has previously

stated that “[f]elony vehicle flight is a violent felony for

purposes of [the] ACCA.”                 Sykes v. United States, 131 S. Ct.

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2267, 2277 (2011); see also United States v. Scott, 521 F. App’x

112, 114 (4th Cir. 2013) (per curiam) (holding that fleeing to

elude arrest under N.C. Gen. Stat. § 20-141.5 constitutes crime

of violence for purposes of USSG § 4B1.4(b)(3)(A)). Therefore,

the district court correctly concluded that Evans committed a

crime    of    violence    in   connection         with     his     possession      of    a

firearm,      meriting    application       of    an     offense    level    of    34    as

provided by § 4B1.4(b)(3)(A).

      Finally, counsel questions whether Evans’ sentence of 188

months’    imprisonment      was    reasonable,          focusing    specifically        on

whether the court erred when it denied the motion for downward

departure      and/or    variance.      We       apply    “an     abuse-of-discretion

standard” when reviewing a sentence for reasonableness.                           Gall v.

United States, 552 U.S. 38, 51 (2007).                      We first examine the

district      court’s    sentence     for   “significant          procedural      error,”

including “failing to calculate (or improperly calculating) the

Guidelines range, . . . failing to consider the [18 U.S.C.]

§ 3553(a)      factors,     selecting       a     sentence        based     on    clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”      Id.

      If we find no significant procedural error, we examine the

substantive reasonableness of a sentence under “the totality of

the     circumstances.”         Id.         The    sentence        imposed       must    be

“sufficient, but not greater than necessary,” to satisfy the

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goals of sentencing.            18 U.S.C. § 3553(a).             We presume on appeal

that a within-Guidelines sentence is substantively reasonable.

United States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert.

denied, 135 S. Ct. 421 (2014).                       The defendant can rebut that

presumption only “by showing that the sentence is unreasonable

when measured against the 18 U.S.C. § 3553(a) factors.”                              Id.

       We     conclude     that      the       district         court        satisfied      the

procedural       requirements            by     correctly         calculating          Evans’

Guidelines      range;    considering          the     parties’     arguments,         Evans’

allocution,      and      the     § 3553(a)          factors;      and        providing     an

individualized assessment fully grounded in those factors.                                  As

to substantive reasonableness, we conclude that Evans has failed

to    rebut    the    presumption        of    reasonableness           accorded      to    his

within-Guidelines         sentence.            As     indicated         by     the   court’s

statements on record, the court found that the totality of the

circumstances         warranted      a     sentence        at    the     bottom      of    the

Guidelines range but not a downward variance or departure.                                 Such

a determination is within the discretion of the sentencing court

and is not an abuse of discretion.

       Evans    also    contends     that      sentencing        counsel’s       assistance

was    ineffective.              Unless        an     attorney’s         ineffectiveness

conclusively         appears    on   the      face    of   the    record,       ineffective

assistance claims are not generally addressed on direct appeal.

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); see

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United    States       v.    Smith,      640    F.3d    580,   587    (4th     Cir.    2011)

(stating that ineffective assistance is conclusively established

where    appellate         court    “need      not    look   beyond    the    trial    court

record brought . . . in a direct appeal”); see also Strickland

v. Washington, 466 U.S. 668, 687 (1984) (providing standard for

ineffective-assistance claims).                      Instead, such claims should be

raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012),

in order to permit sufficient development of the record.                              United

States    v.    Baptiste,      596    F.3d      214,     216   n.1    (4th    Cir.    2010).

Because the record does not conclusively establish ineffective

assistance of counsel, we conclude that these claims should be

raised, if at all, in a § 2255 motion.

     We have reviewed the record and the other arguments Evans

raises in his pro se supplemental brief and conclude that they

are without merit.              We therefore affirm the district court’s

judgment.           This court requires that counsel inform Evans, in

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

United States for further review.                        If Evans 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 Evans.




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     We dispense with oral argument because the facts and legal

contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                                AFFIRMED




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