                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5039



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


BOBBY GENE MOORE,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:07-cr-00170-JAB)


Submitted:   March 31, 2008                 Decided:   April 14, 2008


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Paul Alexander Weinman, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Bobby   Gene     Moore     pled    guilty,    pursuant       to   a   plea

agreement, to bank robbery, in violation of 18 U.S.C. § 2113(a)

(2000).    The district court sentenced Moore to seventy-seven

months’ incarceration, to be followed by three years of supervised

release.   Moore timely appealed.

           On   appeal,     counsel     has    filed    a     brief   pursuant    to

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

meritorious     issues    for     review,     but   questioning       whether    the

presentence     report    was     calculated    correctly       and   whether    the

sentence was reasonable. Moore separately argues that he agreed to

a sentence of thirty-seven to forty-six months, not seventy-seven

to eighty-four months; the sentence was unreasonable because he had

never before been convicted of a violent crime; he did not possess

a firearm during the commission of the bank robbery; and the

presentence     report    added     “unfair”     misdemeanor      points.        The

government declined to file a responding brief.                 We affirm.

           To    the     extent    Moore     claims     his    guilty    plea     was

involuntary and the district court erred in accepting it, any error

committed during the Rule 11 hearing is reviewed for plain error

because Moore did not move to withdraw his guilty plea.                  See United

States v. Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002).                           A

defendant’s statements at a guilty plea hearing are presumed true.

See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).                   Unsupported


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subsequent allegations are insufficient to overcome representations

at the hearing.           Id. at 74; see also Via v. Superintendent,

Powhatan Corr. Ctr., 643 F.2d 167, 171 (4th Cir. 1981) (holding

statements made at plea hearing that facially demonstrate plea’s

validity conclusive absent compelling reason why they should not

be, such as ineffective assistance of counsel). Under the totality

of the circumstances and in light of Moore’s testimony at his plea

hearing,     the    district   court   did     not    abuse    its   discretion   by

accepting Moore’s guilty plea.

             To any extent Moore claims ineffective assistance of

counsel, such claims must be brought in a collateral proceeding

under 28 U.S.C. § 2255 (2000) unless such ineffective assistance

conclusively appears from the face of the record.                       See United

States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).                    Because

ineffective assistance of counsel does not appear conclusively from

the   face    of    the   record,   Moore      must    pursue    any   ineffective

assistance claims through a § 2255 motion.

             Regarding      Moore’s     sentence,        the     district     court

appropriately treated the Guidelines as advisory, considered the

advisory Guidelines range, and weighed the relevant 18 U.S.C.

§ 3553(a) (2000) factors.           See United States v. Hughes, 401 F.3d

540, 546-47 (4th Cir. 2005).             A sentence that falls within a

properly calculated advisory Guidelines range is presumed to be

reasonable.        Rita v. United States, 127 S. Ct. 2456, 2462 (2007).


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Appellate courts review all sentences, including those outside the

advisory Guidelines range, for abuse of discretion. Gall v. United

States, 128 S. Ct. 586, 597 (2007).

              Our review of the record reveals that the Guidelines

range   was    properly   calculated.        Moore’s       seventy-seven   month

sentence was at the low end of the Guidelines range and well below

the statutory maximum sentence.        The district court considered the

Guidelines as well as both parties’ arguments regarding Moore’s

criminal history, his age, and the nature of his crime.                        We

conclude   the    district   court   did     not   abuse    its   discretion   in

imposing the seventy-seven month sentence.

              Finally, although Moore complains on appeal that he did

not agree to the higher sentencing range, the plea agreement

provided only that if Moore’s base offense level was sixteen or

higher and he qualified for a two-point decrease in his offense

level   under    the   sentencing    Guidelines,      the    Government    would

recommend that the district court apply an additional one-level

reduction. The plea agreement also noted Moore’s sentence would be

within the discretion of the district court, which would take the

Guidelines into consideration.             Therefore, the plea agreement

referenced the Guidelines generally but did not attempt to bind the

parties to a specific sentencing range.

              In accordance with Anders, we have reviewed the record in

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


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therefore affirm Moore’s conviction and sentence.       This court

requires that counsel inform Moore, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Moore 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 Moore.

          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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