                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4406



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


PATRICK ELLIOTT SCARBROUGH,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (CR-02-807)


Submitted:   February 24, 2006              Decided:   March 27, 2006


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Reynolds Williams, WILLCOX, BUYCK & WILLIAMS, P.A., Florence, South
Carolina, for Appellant.      Jonathan S. Gasser, United States
Attorney, Alfred W. Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Patrick Elliott Scarbrough pled guilty to conspiracy to

distribute and to possess with intent to distribute fifty grams or

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

(2000). He received a 144-month sentence. On appeal, his attorney

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), raising the issue of whether the court erred in assessing

two rather than one criminal history point at sentencing based on

a certain juvenile offense and whether counsel was ineffective in

this regard.     Although advised of his right to do so, Scarbrough

has not filed a supplemental pro se brief.

           On appeal, Scarbrough first argues that the district

court erred in assessing two points to his criminal history score

based on a 1998 juvenile conviction for which he received a 90-day

sentence   but   served   only   31    days   of   confinement.   See   U.S.

Sentencing Guidelines Manual § 4A1.2(d) (2001) (directing that

three points be added if the juvenile was convicted as an adult and

sentenced to imprisonment exceeding thirteen months, two points if

the juvenile was sentenced to confinement of at least sixty days,

and one point for all other recent juvenile convictions).          Because

Scarbrough withdrew his objection below, review is for plain error.

United States v. Olano, 507 U.S. 725 (1993).             To meet the plain

error standard:    (1) there must be an error; (2) the error must be

plain; and (3) the error must affect substantial rights.            Id. at


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732-34.   If the three elements of the plain error standard are met,

the court may exercise its discretion to notice error only if the

error    seriously         affects   “the   fairness,    integrity,         or   public

reputation      of    judicial       proceedings.”      Id.    at     736   (citation

omitted).    Assuming without deciding there was error, Scarbrough’s

substantial rights were not affected as his criminal history

category would remain the same without inclusion of the disputed

point.

            To       the    extent    Scarbrough     argues    that    counsel      was

ineffective for failing to object at sentencing on the above

ground, claims of ineffective assistance of counsel are generally

not cognizable on direct appeal.              See United States v. King, 119

F.3d 290, 295 (4th Cir. 1997).                Rather, to allow for adequate

development of the record, a defendant must bring his claim in a

motion under 28 U.S.C. § 2255 (2000).                See id.; United States v.

Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).               An exception exists when

the record conclusively establishes ineffective assistance. United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                         We find

that ineffective assistance does not conclusively appear from the

record.

            In accordance with Anders, we have reviewed the entire

record    for    any        meritorious     issues    and     have    found       none.*


     *
      On August 17, 2005, a standard order was filed directing the
parties to file supplemental briefing.      Instead of requesting
briefing in light of United States v. Booker, 543 U.S. 220 (2005),

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Accordingly, we affirm Scarbrough’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




the order erroneously requested briefing addressing the impact of
this court’s decision in United States v. Blick, 408 F.3d 162 (4th
Cir. 2005). Both parties have responded, noting that there was no
appellate waiver in Scarbrough’s case, and therefore Blick is
inapplicable. Although Scarbrough’s counsel has not raised a claim
under Booker, we have conducted an independent review under Anders
and found no Sixth Amendment violation or plain error in the
mandatory application of the guidelines under Booker.

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