                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-4411


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARVIN MCDOWELL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:07-cr-00711-HFF-7)


Submitted:   April 16, 2010                 Decided:   June 17, 2010


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Timothy Ward Murphy, LAW OFFICE OF WADE S. KOLB, JR., Sumter,
South Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United   States  Attorney,   Greenville, South  Carolina,   for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Marvin       McDowell   appeals       from    the    180-month      sentence

imposed following his guilty plea, pursuant to a written plea

agreement,      to     one    count    of       conspiracy        to   distribute       five

kilograms or more of cocaine and fifty grams or more of cocaine

base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846

(2006).       McDowell’s counsel 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: (1) the

district court complied with Federal Rule of Criminal Procedure

11   (“Rule    11”)    in     accepting     McDowell’s       guilty      plea;    (2)    the

record     conclusively            shows      McDowell       received        ineffective

assistance of counsel; and (3) McDowell was properly designated

as a career offender.              McDowell was advised of his right to file

a pro se brief, but has not done so.                    We affirm the conviction,

vacate the sentence, and remand for resentencing.

              Prior    to    accepting      a     defendant’s      guilty    plea,      Rule

11(b)(1) requires the district court to address the defendant in

open court and ensure he understands: the nature of the charge

against    him;       any     mandatory       minimum      sentence;        the   maximum

possible      sentence,      including      imprisonment,          fine,   and    term    of

supervised      release;        the    mandatory        special        assessment;       the

applicability         of     the     United       States    Sentencing        Guidelines

(“U.S.S.G.”      or    “Guidelines”)          and   their    advisory       nature;      his

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right to an attorney at all stages of the proceedings; his right

to   plead     not     guilty;       his    right       to       a    jury     trial     with    the

assistance of counsel; his right to confront and cross-examine

witnesses; his right to testify on his own behalf as well as his

right against self-incrimination; any waiver provision in the

plea agreement; the court’s authority to order restitution; any

applicable forfeiture; and the government’s right to use any of

his statements under oath in a perjury prosecution.                                       Fed. R.

Crim. P. 11(b)(1).                The district court must also inform the

defendant that he may not withdraw his guilty plea once the

court accepts it and imposes a sentence.                                    Fed. R. Crim. P.

11(e).        Additionally, the district court must “determine that

there    is    a    factual       basis    for    the      plea.”           Fed.    R.   Crim.       P.

11(b)(3).            Finally,       the     district          court          must    ensure      the

defendant’s         plea    was    voluntary         and     did      not    come    about      as    a

result    of       force,     threats,      or       promises.              Fed.    R.   Crim.       P.

11(b)(2).

               Because McDowell did not move to withdraw his guilty

plea in the district court or raise any objections to the Rule

11 colloquy, we review the colloquy for plain error.                                         United

States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002); United

States    v.       General,    278    F.3d       389,      393       (4th    Cir.    2002).          To

demonstrate         plain      error,      McDowell           must          show    “that     error

occurred, that the error was plain, and that the error affected

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his substantial rights.”             General, 278 F.3d at 393 (internal

quotation marks omitted).           McDowell does not specify any errors

in the plea colloquy and our review of the record reveals that

the district court substantially complied with the requirements

of Rule 11.     Therefore, we find that McDowell’s guilty plea was

knowing and voluntary.

            Counsel also questions whether the record conclusively

establishes that McDowell’s trial counsel was ineffective.                         A

defendant may raise a claim of ineffective assistance of counsel

“on direct appeal if and only if it conclusively appears from

the    record   that        his    counsel       did   not     provide     effective

assistance.”    United States v. Martinez, 136 F.3d 972, 979 (4th

Cir. 1998).     To prove ineffective assistance the defendant must

satisfy   two   requirements:        (1)       “that   counsel’s    representation

fell   below    an     objective      standard         of    reasonableness”     and

(2) “that   there      is    a    reasonable      probability      that,   but   for

counsel’s unprofessional errors, the result of the proceeding

would have been different.”            Strickland v. Washington, 466 U.S.

668, 688, 694 (1984).             In the context of a guilty plea, “the

defendant must show that there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.”                     Hill v. Lockhart, 474

U.S. 52, 59 (1985).



                                           4
             McDowell has not specified how counsel was ineffective

beyond the conclusory allegation in the Anders brief.                            Moreover,

McDowell     indicated       at    the    plea     hearing     that       he    had    ample

opportunity to speak with counsel and was fully satisfied with

counsel’s services.           Therefore, we find that the record does not

conclusively        establish       that     McDowell         received         ineffective

assistance of trial counsel.

             Finally,        because      the     Government        has        not    sought

enforcement of the waiver provision in the plea agreement, we

next    consider         McDowell’s      challenge      to    his    career          offender

designation.        In assessing the district court’s application of

the Guidelines, including any sentencing enhancements, we review

the district court’s factual findings for clear error and its

legal conclusions de novo.                United States v. Layton, 564 F.3d

330, 334 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009).

             To qualify as a career offender: (1) the defendant

must have been at least eighteen years old at the time of the

offense of conviction; (2) the offense of conviction must have

been a felony crime of violence or controlled substance offense;

(3)    and   the    defendant      must    have    at    least      two    prior      felony

convictions        for    crimes    of    violence      or    controlled         substance

offenses.      U.S.S.G. § 4B1.1(a).               According to the Presentence

Investigation       Report,       McDowell   had     two     predicate      convictions:

one for distribution of cocaine and one for failure to stop for

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a    blue   light      in   violation         of    South    Carolina            Code    § 56-5-750

(2006).      However, counsel argues that McDowell should not be

considered a career offender because his conviction for failure

to stop for a blue light was not a crime of violence.

             Because the language of U.S.S.G. § 4B1.2(a) defining a

crime of violence is almost identical to the language in the

Armed Career Criminal Act (“ACCA”) defining a violent felony,

“our    reasoning       regarding           the    meaning       of    ‘violent         felony’     is

relevant to determining the meaning of ‘crime of violence.’”

United States v. Johnson, 246 F.3d 330, 333 n.5 (4th Cir. 2001).

Recently we held that, because a violation of the South Carolina

blue    light     statute      is       a    strict     liability           crime,       “under     no

circumstance” is such a violation “a violent felony under the

ACCA.”      United States v. Rivers, 595 F.3d 558, 560 (4th Cir.

2010).       In     light     of        Rivers,        we    conclude           that     McDowell’s

conviction       for    failure         to    stop     for       a   blue       light    is   not   a

predicate       offense       for           purposes        of       the        career     offender

enhancement.         Therefore, the district court erred in overruling

McDowell’s        objection.                Additionally,            because       McDowell       was

improperly       designated         a       career     offender,           we    find    that     the

district court committed significant procedural error by failing

to    properly      calculate       the       applicable         Guidelines         range.        See

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



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          In accordance with Anders, we have examined the entire

record and find no other meritorious issues for appeal.       We

therefore affirm McDowell’s conviction, but vacate his sentence

and remand for resentencing.    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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