                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4315



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JONATHAN MILLER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00195-ALL)


Submitted: September 28, 2006              Decided: October 5, 2006


Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. James Payne, POWELL & PAYNE, Shallotte, North Carolina, for
Appellant. Robert John Gleason, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jonathan Miller pled guilty to possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g) (2000).                       The

district    court        sentenced     Miller        to     seventy-seven        months’

imprisonment,      three    years    of    supervised        release,      and   ordered

payment of a $100 statutory assessment.*                     Miller’s 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 questioning whether Miller’s attorney was ineffective for

failing    to    lodge    objections      to   the    presentence       investigation

report,    and    asserting    that       Miller’s        base   offense    level   was

incorrectly calculated.        Miller was given an opportunity to file a

supplemental pro se brief, and has asserted that his attorney was

ineffective for failing to move for a downward departure.

            We find to be without merit Miller’s challenge to his

sentence. While he is correct that the two prior felony controlled

substance convictions on which his base offense level was founded

were consolidated for sentencing purposes, they were on offenses

separated by an intervening arrest, and thus are not considered to

be   “related”     for    sentencing       purposes.         See   U.S.     Sentencing

Guidelines Manual (“USSG”), § 4A1.2, comment. (n.3) (2004). Hence,



      *
      The probation officer calculated an advisory sentencing
guideline range applicable to Miller of seventy-seven to ninety-
seven months’ imprisonment, founded on a total offense level of
twenty-one and a criminal history category of VI.

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the district court properly applied a base offense level of twenty-

four to Miller, pursuant to USSG § 2K2.1(a)(2), rather than the

lesser level set forth in § 2K2.1(a)(4)(A).

           Miller’s claim 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 his counsel was ineffective.           United States v. DeFusco, 949

F.2d 114, 120-21 (4th Cir. 1991).            Because the record does not

conclusively    establish    ineffective     assistance    of   counsel,   we

decline to consider this claim on direct appeal.

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   We therefore affirm Miller’s conviction 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 materials before

the court and argument would not aid the decisional process.

                                                                    AFFIRMED


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