                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4332


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NOEL ROBINSON, a/k/a Bongo, a/k/a Mr. B,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   Henry M. Herlong, Jr., Senior
District Judge. (7:10-cr-00043-HMH-2)


Submitted:   January 20, 2012             Decided:   February 2, 2012


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Hannah   Rogers   Metcalfe,   HANNAH   ROGERS    METCALFE,  P.A.,
Greenville, South Carolina, for Appellant.    William N. Nettles,
United States Attorney, Leesa Washington, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Noel Robinson pled guilty to conspiracy to distribute

methamphetamine, cocaine, and cocaine base, in violation of 21

U.S.C.A. §§ 841(a)(1), (b)(1)(A), 846 (West 1999 & Supp. 2011).

The   district      court     imposed          a    sentence       of    139    months’

imprisonment, and Robinson timely appealed.                       On appeal, counsel

for Robinson filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), asserting that there are no meritorious grounds

for appeal but questioning whether the district court abused its

discretion    in   finding     a    factual        basis    to    support   Robinson’s

plea, whether Robinson’s sentence was appropriate, and whether

Robinson’s trial counsel was ineffective.                    Robinson was informed

of his right to file a pro se supplemental brief but has not

done so.

           We directed supplemental briefing on the adequacy of

the district court’s explanation of sentence, and whether any

error in that explanation was harmless.                          In his supplemental

brief,   Robinson     asserts       that   the       district      court    failed   to

adequately    explain   its       denial   of      his     request   for    a   downward

departure or variance and failed to state its reasons for the

sentence   imposed.         The    Government        asserts      that   the    district

court did not err in its explanation, and that, if we conclude

the court erred, the error was harmless.                      For the reasons that



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follow, we affirm Robinson’s conviction, but vacate his sentence

and remand for resentencing.

           Because Robinson did not move to withdraw his guilty

plea, we review the Fed. R. Crim. P. 11 hearing for plain error.

United States v. Martinez, 277 F.3d 517 (4th Cir. 2002).                          To

establish plain error, Robinson “must show:                   (1) an error was

made;   (2)   the   error    is    plain;     and    (3)    the   error      affects

substantial rights.”        United States v. Massenburg, 564 F.3d 337,

342-43 (4th Cir. 2009).           Our review of the record leads us to

conclude that the district court substantially complied with the

mandates of Rule 11 in accepting Robinson’s guilty plea and that

any omissions did not affect Robinson’s substantial rights.                      The

record confirms that the plea was supported by a factual basis

and that Robinson voluntarily and knowingly entered a plea of

guilty.

           Turning to Robinson’s sentence, this court reviews for

reasonableness,     applying      the     abuse     of    discretion      standard.

Gall v. United States, 552 U.S. 38, 51 (2007).                       This review

requires consideration of both the procedural and substantive

reasonableness of the sentence.             Id.; United States v. Lynn, 592

F.3d 572, 575 (4th Cir. 2010).               After determining whether the

district   court    correctly     calculated        the    defendant’s    advisory

Guidelines    range,    this      court      examines      whether     the    court

considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the

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arguments presented by the parties, and sufficiently explained

the   selected     sentence.        Lynn,    592    F.3d       at    575-76;          United

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).                                  If the

sentence is free of significant procedural error, this court

will then review the substantive reasonableness of the sentence.

Lynn, 592 F.3d at 575; United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).

            We     conclude     that     the    district            court          committed

procedural error in failing to sufficiently explain Robinson’s

sentence.        Before    sentencing,      Robinson    moved        for       a    downward

departure or variance to a sentence of 120 months, arguing that

his   criminal     history    was   overstated      and    citing       his         lack    of

active involvement in the conspiracy.               The district court denied

the   motion     without     explanation.          In   imposing           a       139-month

sentence, the district court merely stated that a Guidelines

sentence “is appropriate in this case.”

            Because Robinson’s trial counsel argued at sentencing

for a lesser sentence of 120 months, this issue is preserved on

appeal.     Lynn,    592     F.3d   at   578;   see     also    United             States   v.

Boulware, 604 F.3d 832, 838 (2010).                   Review in this court is

therefore under the harmless error standard.                   Boulware, 604 F.3d

at 838; see also Lynn, 592 F.3d at 581 (“we review the district

court’s sentencing procedure for abuse of discretion, and must

reverse if we find error, unless we can conclude that the error

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was harmless”).        The Government has the burden of proving that

the district court’s error in this regard was harmless.                    Lynn,

592 F.3d at 585.

           We conclude that the Government has failed to show

that the sentencing error was harmless.            It is not clear whether

the    district   court’s      explicit     consideration    of    Robinson’s

arguments would have affected his sentence, nor is the record

sufficient to permit effective appellate review.                 We therefore

vacate Robinson’s sentence and remand for resentencing.

           Robinson’s counsel also suggests in the Anders brief

that   trial   counsel    may    have    been    ineffective.      Claims    of

ineffective assistance of counsel are not cognizable on direct

appeal unless the record conclusively establishes that counsel

provided ineffective assistance.            United States v. Baldovinos,

434 F.3d 233, 239 (4th Cir. 2006); see also United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997).               The record here does

not conclusively establish ineffectiveness.

           Accordingly, we affirm Robinson’s conviction, vacate

his sentence, and remand for resentencing.               In accordance with

Anders, we have reviewed the entire record in this case and

found no other meritorious issues.               This court requires that

counsel inform Robinson in writing of his right to petition the

Supreme   Court   of    the   United    States   for   further   review.     If

Robinson requests that a petition be filed, but counsel believes

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that such petition would be frivolous, counsel may move this

court   for   leave    to   withdraw   from   representation.      Counsel’s

motion must state that a copy thereof was served on Robinson.

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 IN PART,
                                                                AND REMANDED




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