                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4716



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOHN SHERMAN LEE,

                                             Defendant - Appellant.


                             No. 06-4896



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MICHAEL SCOTT CRISP,

                                             Defendant - Appellant.


Appeals from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, District Judge.
(4:05-cr-01124-TLW; 4:05-cr-01124-TLW-2)


Submitted:   February 28, 2007               Decided:   May 14, 2007


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Thomas G. Nessler, Jr., Surfside Beach, South Carolina; Kathy Price
Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South Carolina, for
Appellants. Alfred William Walker Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           John Sherman Lee and Michael Scott Crisp, co-defendants

in an armed robbery prosecution, appeal from their convictions and

sentences.      Crisp pled guilty to possession of a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C.A.

§ 924(c)(1) (West 2000 & Supp. 2006).                   Pursuant to his plea

agreement, Crisp agreed to testify against Lee at his trial. After

Lee’s trial commenced, Lee pled guilty without the benefit of a

plea   agreement   to   armed   robbery,     in   violation      of   18    U.S.C.

§ 1951(a) (2000), possession of a firearm by a felon, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(e) (2000), and possession of a

firearm in furtherance of a crime of violence, in violation of 18

U.S.C.A. § 924(c)(1).     Both Lee and Crisp were sentenced as career

offenders, pursuant to United States Sentencing Guidelines Manual

(USSG) § 4B1.1 (2005), and received sentences of 312 and 204

months’ imprisonment, respectively.

           On   appeal,   counsel   for     Lee   and    Crisp   have      filed   a

consolidated brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting that there are no meritorious issues on appeal

but that their clients challenge the adequacy of their Fed. R.

Crim. P. 11 hearings and the reasonableness of their sentences.

Lee and Crisp have filed pro se supplemental briefs, in which they

raise a number of issues regarding the effectiveness of their trial

counsel and the calculation of the Guidelines ranges at sentencing.


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Because our review of the record discloses no reversible error, we

affirm.

               Both Lee and Crisp contend that the district court failed

to    comply    with   the    requirements      of   Fed.   R.   Crim.   P.    11    in

conducting their guilty plea hearings.                  During a Rule 11 plea

colloquy, the district court must address the defendant in open

court and inform him of the following: the nature of the charge;

any mandatory minimum sentence and the maximum possible sentence;

the    applicability     of    the    sentencing      guidelines;      the    court’s

obligation to impose a special assessment; the defendant’s right to

an attorney; his right to plead not guilty and be tried by a jury

with    the    assistance     of     counsel;   his    right     to   confront      and

cross-examine witnesses; his right against self-incrimination; and

his right to testify, present evidence, and compel the attendance

of witnesses.       The defendant also must be told that a guilty plea

waives any further trial and that his answers at the proceeding may

be used against him in a prosecution for perjury.                        Under Rule

11(b)(2), the court must address the defendant to determine that

the plea is voluntary.          The court must require disclosure of any

plea agreement under Rule 11(c)(2) and determine a factual basis

for the plea under Rule 11(b)(3).               Because neither Lee nor Crisp

moved in the district court to withdraw their guilty plea, any

challenges to the Rule 11 hearing are reviewed for plain error.

See United States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).


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             After a thorough review of the record, we find that there

were no errors with respect to the Rule 11 plea colloquies.              At

both plea hearings, the district court informed the defendants of

the rights that they were giving up as a result of their pleas,

detailed the nature of the charges and penalties they faced,

determined that their pleas were voluntary, and concluded that

there was a sufficient factual basis for each of their pleas.

Therefore, the record establishes that both Lee and Crisp knowingly

and voluntarily entered into their respective guilty pleas with a

full understanding of the consequences, and there was no error in

the district court’s acceptance of their pleas.

             Lee and Crisp also assert that the sentences imposed by

the district court were unreasonable.          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.          See United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).                   In a

post-Booker sentencing such as the one at issue, the district court

must calculate the appropriate Guidelines range, consider that

range   in   conjunction   with   other   relevant   factors   under    the

Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and

impose a sentence.     United States v. Green, 436 F.3d 449, 455-56

(4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).         A post-Booker

sentence must be “within the statutorily prescribed range and . . .

reasonable.”    Hughes, 401 F.3d at 546-47 (citations omitted). “[A]


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sentence within the properly calculated Guidelines range . . . is

presumptively reasonable.”      Green, 436 F.3d at 457 (internal

quotation marks and citation omitted).

          As noted by the district court, Lee faced a minimum of

fifteen years’ imprisonment for possession of a firearm by a felon,

pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), with a maximum

sentence of life in prison.      As for Crisp, his conviction for

possession of a firearm in furtherance of a crime of violence

carried a minimum term of imprisonment of ten years, with a maximum

term of life, pursuant to 18 U.S.C.A. § 924(c)(1).        Therefore,

their respective sentences of 312 and 204 months’ imprisonment were

within the statutory maximum.

          As for the calculation of the advisory Guidelines ranges,

both defendants were determined to be career offenders under USSG

§ 4B1.1(c)(3), and pursuant to USSG § 4B1.1, each received a

criminal history category of VI.        Crisp’s Guidelines range was

reduced after the Government filed a § 5K1.1 motion, as the

district court lowered his offense level by four levels.         The

district court determined Lee’s Guidelines range to be 292 to 365

months’ imprisonment, while Crisp’s Guidelines range was calculated

to be between 168 to 210 months’ imprisonment.    The district court

considered the § 3553(a) factors, and Lee and Crisp’s respective

sentences of 312 and 204 months’ imprisonment were within the




                                - 6 -
properly calculated Guidelines ranges. Therefore, we conclude that

the sentences imposed by the district court were not unreasonable.

          In his pro se supplemental brief, Lee makes various

claims regarding the effectiveness of his trial counsel.    However,

a claim of ineffective assistance of counsel should be raised in a

28 U.S.C. § 2255 (2000) motion with the district court rather than

on direct appeal, unless the record conclusively demonstrates

ineffective assistance.   United States v. King, 119 F.3d 290, 295

(4th Cir. 1997) (internal citations and quotations omitted).    Such

a claim cannot be fairly adjudicated on direct appeal where the

appellant has not raised the issue before the district court and

there is no statement from counsel on the record.    United States v.

DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).       Regarding Lee’s

claims of ineffective assistance, there is no evidence on the

record to support his allegations.     Therefore, Lee’s claims should

be raised as part of a § 2255 motion rather than on direct appeal.

          Lee also alleges that his previous counsel, Michael

Meetze, who was appointed from the Federal Public Defender’s

Office, was improperly removed from his case and replaced by his

current attorney, Thomas Nessler, Jr.     Lee claims that Meetze was

removed by the district court due to an alleged conflict of

interest regarding a witness for the Government.        However, Lee

asserts that no conflict actually existed and that the Government




                               - 7 -
used the witness, who was never called at trial, to circumvent his

right to a speedy trial.

           The    record   indicates      that    Meetze’s       appointment    was

terminated in January 2006 because the district court determined

that Lee had sufficient funds for “payment of compensation and

expenses   of    court-appointed       counsel    .    .    .   .”   Nessler    was

subsequently named as counsel for Lee and was granted a continuance

of the March trial date, as the district court determined that the

continuance     was   justified   as    serving       the   “ends    of   justice,”

pursuant to 18 U.S.C. § 3161(h)(8)(A) (2000).               In light of the fact

that Nessler was appointed as counsel less than thirty days before

the pre-trial conference and had met only once with his client, we

find that the district court adequately weighed the continuance

against the interests of the public and the defendant in a speedy

trial, and properly continued the trial date to allow counsel to

become more familiar with the case.         See United States v. Keith, 42

F.3d 234, 237-38 (4th Cir. 1994).          To the extent that Lee contends

that his preferred counsel was erroneously removed, there is no

evidence on the record to support Lee’s assertions, as it appears

that Lee did not qualify for representation by the Federal Public

Defender because he had sufficient funds to make at least partial

payment for representation by court-appointed counsel.                    While Lee

claims he objected to Meetze’s removal, Lee has no right to choose

the particular attorney appointed to represent him. See Miller v.


                                   - 8 -
Smith, 115 F.3d 1136, 1143-44 (4th Cir. 1997).        Therefore, we find

that the district court did not err by substituting attorneys.

           In his pro se supplemental brief, Crisp also makes

various claims regarding ineffective assistance given by his trial

counsel.   However, Crisp’s claims regarding ineffective assistance

must be raised as part of a § 2255 motion rather than on direct

appeal, as there is no evidence on the record to support his

allegations.   See King, 119 F.3d at 295.

           Crisp also contends that one of his juvenile convictions

was improperly considered in the district court’s determination of

whether he qualified as a career offender.         In order for Crisp to

be designated a career offender, the Government had to establish

(1) that Crisp was at least 18 at the time of the instant offense,

(2) that the instant offense is a felony that is either a “crime of

violence” or a “controlled substance offense,” and (3) that Crisp

had at least two prior felony convictions for either a “crime of

violence” or a “controlled substance offense.”           USSG § 4B1.1(a).

Crisp’s    criminal   history   does     include   two   prior   juvenile

convictions; however, Crisp’s criminal history also includes two

adult felony convictions involving breaking and entering. Pursuant

to USSG § 4B1.2(a)(2), burglary of a dwelling constitutes a crime

of violence.   See United States v. Harrison, 58 F.3d 115, 119 (4th

Cir. 1995).     Therefore, Crisp has at least two prior felony

convictions for a crime of violence, regardless of whether his


                                 - 9 -
juvenile convictions are considered, and was properly determined by

the district court to be a career offender.

              In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                       We

therefore affirm Lee and Crisp’s convictions and sentences.                    This

court requires counsel inform their clients, in writing, of their

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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