                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4492


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LANCE RICHARDSON PAGAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:13-cr-00258-RJC-8)


Submitted:   January 19, 2016             Decided:   April 5, 2016


Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Peter Wood, Raleigh, North Carolina, for Appellant.     Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Lance       Richardson       Pagan     pled       guilty    pursuant      to   a    plea

agreement to conspiracy to distribute and possess with intent to

distribute 280 grams or more of cocaine base and 5 kilograms or

more of cocaine, in violation of 21 U.S.C. § 846 (2012).                                    The

district         court    calculated       Pagan’s       Guidelines      range    under     the

U.S. Sentencing Guidelines Manual (2014) at 70 to 87 months’

imprisonment and sentenced Pagan to 84 months’ imprisonment.

       On appeal, counsel has filed a brief pursuant to Anders v.

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

meritorious issues for appeal, but raising as issues for review

whether the district court reversibly erred in accepting Pagan’s

guilty       plea,        whether     trial           counsel     rendered       ineffective

assistance, whether the district court abused its discretion in

imposing         sentence,      and       whether       the     prosecution      engaged     in

misconduct.         Pagan has filed a pro se supplemental brief raising

several issues.            The Government elected not to file a brief and

does       not   seek     to   enforce      the       appeal    waiver   in   Pagan’s      plea

agreement. *        We affirm.




       *
       Because the Government fails to assert the waiver as a bar
to the appeal, we may consider the issues raised by counsel and
Pagan and conduct an independent review of the record pursuant
to Anders.    United States v. Poindexter, 492 F.3d 263, 271
(4th Cir. 2007).



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      Because         Pagan      did     not    move      in     the     district       court   to

withdraw his guilty plea, the acceptance of his guilty plea is

reviewed       for    plain       error    only.          United       States    v.     Martinez,

277 F.3d       517,    524-26       (4th    Cir.        2002).      To    demonstrate       plain

error, a defendant must show:                           (1) there was error; (2) the

error    was     plain;       and    (3)   the       error     affected        his   substantial

rights.     United States v. Olano, 507 U.S. 725, 732 (1993).                                   In

the   guilty         plea     context,      a       defendant      meets       his     burden   to

establish that a plain error affected his substantial rights by

showing a reasonable probability that he would not have pled

guilty    but        for    the     district         court’s       Fed.    R.    Crim.     P.   11

omissions.           United       States       v.   Massenburg,          564    F.3d    337,    343

(4th Cir. 2009).

      Our review of the transcript of the guilty plea hearing

leads us to conclude that the magistrate judge’s omissions did

not     affect       Pagan’s        substantial          rights.          Additionally,         the

transcripts of the guilty plea and sentencing hearings reveal

that the magistrate judge and district court ensured that the

plea was supported by an independent basis in fact and that

Pagan     entered          the    plea     knowingly         and    voluntarily         with    an

understanding of the consequences.                         Accordingly, we discern no

plain error in the district court’s acceptance of Pagan’s guilty

plea.      See United States v. DeFusco, 949 F.2d 114, 116, 120

(4th Cir. 1991).

                                                    3
       Next,   we      decline     to    reach       Pagan’s      claim      of     ineffective

assistance     of      counsel.         Unless       an    attorney’s        ineffectiveness

conclusively        appears      on     the    face       of   the     record,      ineffective

assistance claims generally are not addressed on direct appeal.

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

Because the record does not conclusively establish ineffective

assistance       by      Pagan’s      trial      counsel,         we     deem      this     claim

inappropriate         for    resolution         on    direct      appeal.           See   United

States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

       Turning      to   Pagan’s      84-month        sentence,         we   review       it   for

reasonableness            “under        a       deferential            abuse-of-discretion

standard.”       Gall v. United States, 552 U.S. 38, 41, 51 (2007).

This    review        entails      appellate          consideration           of     both      the

procedural       and     substantive           reasonableness           of    the    sentence.

Id. at 51.

       After     determining          whether        the       district      court    properly

calculated the defendant’s advisory Guidelines range and gave

the parties an opportunity to argue for an appropriate sentence,

we consider whether the district court considered the 18 U.S.C.

§ 3553(a)      (2012)       factors      and    any       arguments      presented        by   the

parties, selected a sentence based on clearly erroneous facts,

and sufficiently explained the selected sentence.                               Id. at 49-51.

If the sentence is free of “significant procedural error,” we

review the substantive reasonableness of the sentence, “tak[ing]

                                                4
into account the totality of the circumstances.”                     Id. at 51.

Any sentence within or below a properly calculated Guidelines

range     is     presumptively      substantively     reasonable.          United

States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,

135 S. Ct. 421 (2014).        Such a presumption can only be rebutted

by a showing that the sentence is unreasonable when measured

against the § 3553(a) factors.          Id.

     In this case, the district court did not reversibly err in

calculating      the   Guidelines    range    and   properly    heard     argument

from counsel and allocution from Pagan.                 The court explained

that the 84-month sentence was warranted in light of Pagan’s

history    and     characteristics     and    the   nature     of   his   offense

conduct and the need for the sentence to promote respect for the

law, provide just punishment, afford adequate deterrence, and

protect the public from further crimes by Pagan.                Pagan does not

offer any grounds to rebut the presumption on appeal that his

within-Guidelines         sentence      is     substantively         reasonable.

Accordingly, we conclude that the district court did not abuse

its discretion in sentencing Pagan.

     Next, we review for plain error a prosecutorial misconduct

claim not raised or presented in the district court.                       United

States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005).                 To succeed

on a claim of prosecutorial misconduct, a defendant must show

that the prosecutor engaged in improper conduct and that such

                                        5
conduct “prejudiced the defendant’s substantial rights so as to

deny the defendant a fair trial.”                     Id.        We have reviewed the

record    and      find     no   improper         conduct       on    the   part    of     the

prosecutor that prejudiced Pagan.

     Finally, in accordance with Anders, we have reviewed the

remainder     of    the     record      in    this    case       and    Pagan’s     pro    se

supplemental       brief     and   have      found    no    meritorious          issues    for

appeal.     We      therefore      affirm     the     district         court’s     judgment.

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

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

further review.           If Pagan 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 Pagan.

     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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