                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4895


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL PRESTON MCCLAIN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   Henry M. Herlong, Jr., Senior
District Judge. (7:11-cr-00477-HMH-1)


Submitted:   March 28, 2013                 Decided:   April 2, 2013


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William T. Clarke, SARRATT & CLARKE, Greenville, 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Unpublished opinions are not binding precedent in this circuit.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:

              Michael       Preston       McClain           appeals   his     conviction           and

sentence for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2006).                            McClain pled guilty

and   was     sentenced        to   120     months’          imprisonment.             On   appeal,

counsel       for    McClain        filed     a       brief       pursuant       to     Anders      v.

California,         386     U.S.     738     (1967),          asserting          there      are     no

meritorious         issues     for     appeal          but     questioning            whether      the

district      court       properly    conducted             the   plea    colloquy,         whether

trial counsel was ineffective, and whether McClain’s sentence

was reasonable.            McClain has filed a supplemental pro se brief,

elaborating on counsel’s arguments and alleging a violation of

his right to due process and a reasonable bond.                              We affirm.

              Prior       to   accepting          a    guilty      plea,     a    trial      court,

through colloquy with the defendant, must inform the defendant

of, and determine that the defendant understands, the nature of

the charge to which the plea is offered, any mandatory minimum

penalty, the maximum possible penalty he faces, and the various

rights he is relinquishing by pleading guilty.                               Fed. R. Crim. P.

11(b)(1).           The    district         court       also       must    ensure        that      the

defendant’s plea was voluntary, was supported by a sufficient

factual basis, and did not result from force or threats.                                          Fed.

R.    Crim.    P.    11(b)(2),       (3).             “In    reviewing      the       adequacy      of

compliance with Rule 11, this [c]ourt should accord deference to

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the    trial    court’s        decision     as     to   how      best    to    conduct         the

mandated       colloquy        with   the     defendant.”           United         States       v.

DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

               Because McClain did not move the district court to

withdraw his guilty plea, any errors in the Rule 11 hearing are

reviewed for plain error.                United States v. Martinez, 277 F.3d

517,    525-26     (4th        Cir.   2002).         “To    establish         plain       error,

[McClain] must show that an error occurred, that the error was

plain,    and    that     the    error      affected       his   substantial            rights.”

United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).

Even     if     McClain        satisfies      these        requirements,           we     retain

discretion to correct the error, “which we should not exercise

unless the error seriously affects the fairness, integrity or

public    reputation        of     judicial        proceedings.”             Id.    (internal

quotation marks and brackets omitted).

               McClain     argues      that      the    district        court’s         Rule    11

colloquy       omitted    the     possible         penalties      for    a    violation         of

§ 922(g) without the application of the Armed Career Criminal

Act (ACCA) and that, if he had known he was facing a maximum of

ten    years    under     18    U.S.C.     § 924(a)(2)        (2006),        rather      than    a

minimum of fifteen years and maximum of life under the ACCA, he

would not have pled guilty.                   However, it was the Government’s

position at the time of the guilty plea that McClain was subject

to the ACCA such that, even if the district court had stated the

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penalties for § 922(g) in addition to that of the ACCA, McClain

would have understood he was subject to the ACCA’s mandatory

minimum fifteen-year sentence.                    Moreover, McClain was informed

at    his    initial    appearance      in    the      district      court      and    by   the

penalty sheet filed with the indictment that the maximum penalty

in    the    absence    of    the    ACCA    designation       was    ten       years.       We

therefore conclude that the district court’s omission did not

affect McClain’s substantial rights.

              McClain     also      claims    that      the   Rule    11     colloquy       was

inadequate because the district court neglected to advise him of

the right to confront and cross-examine adverse witnesses.                                  See

Fed. R. Crim. P. 11(b)(1)(E).                      To establish that a district

court’s non-compliance with Rule 11 affected substantial rights,

a     defendant       bears   the     burden       of     “show[ing]       a     reasonable

probability that, but for the error, he would not have entered

the plea.”        United States v. Dominguez Benitez, 542 U.S. 74, 76

(2004).       McClain has not claimed that he would have gone to

trial if the court had properly advised him of this right.                                  We

conclude that McClain has failed to satisfy his burden and that

the    plea     was     knowing      and     voluntary        and    supported         by   an

independent basis in fact.                 See DeFusco, 949 F.2d at 116, 119-

20.

              McClain next claims that trial counsel was ineffective

when    he    advised     McClain      that       he    was   subject      to    the     ACCA.

                                              4
However,     the    record            does    not        conclusively       establish       any

deficient performance of counsel in this regard.                                  See United

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

standard); United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir.    2006).          We    therefore            conclude      that     the     ineffective

assistance claim is not cognizable on direct appeal.                              Rather, to

permit adequate development of the record, McClain must pursue

such a claim, if at all, in an appropriate proceeding for post-

conviction relief.           United States v. Baptiste, 596 F.3d 214, 216

n.1 (4th Cir. 2010).

            McClain              claims        that         the         Government          made

misrepresentations that he was subject to the ACCA such that he

was    denied    his     right        to     due       process    and     his    right    to    a

reasonable      bond.        A    valid,      counseled         guilty    plea    waives       all

antecedent,        non-jurisdictional                     defects         “not      logically

inconsistent with the valid establishment of factual guilt and

which do not stand in the way of conviction if factual guilt is

validly established.”                 Menna v. New York, 423 U.S. 61, 62 n.2

(1975); see      Tollett         v.    Henderson,         411    U.S.    258,    267     (1973).

McClain’s valid, unconditional guilty plea forecloses appellate

review of these claims.

            Finally,         McClain         asserts       that     the    district        court

should not have considered the underlying assault as relevant

conduct because he had not been convicted of that offense in

                                                   5
state court.        However, “[a] court may increase a defendant’s

sentence for uncharged and unconvicted relevant conduct provided

that the conduct constitutes part of the same course of conduct

or common scheme or plan as the offense of conviction.”                      United

States v. Johnson, 643 F.3d 545, 551 (7th Cir. 2011) (internal

quotation marks omitted); see United States v. Grubbs, 585 F.3d

793, 798-99 (4th Cir. 2009) (holding that district court may

consider acquitted and uncharged conduct so long as it is proved

by   preponderance     of    evidence).           Our   review   of    the   record

therefore leads us to conclude that McClain’s within-Guidelines

sentence      was     neither           procedurally       nor     substantively

unreasonable.       See     Gall   v.    United    States,   552      U.S.   38,   51

(2007); United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th

Cir. 2010).

           In accordance with Anders, we have reviewed the record

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

We therefore decline to consider McClain’s claim of ineffective

assistance of counsel and affirm the district court’s judgment.

This court requires that counsel inform McClain, in writing, of

the right to petition the Supreme Court of the United States for

further review.       If McClain 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



                                          6
representation.    Counsel’s motion must state that a copy thereof

was served on McClain.

            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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