                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-4503



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DENNIS WAYNE FITZGERALD,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-02-09)


Submitted:   October 17, 2003             Decided:   October 28, 2003


Before WIDENER, WILKINSON, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory John Ramage, Raleigh, North Carolina, for Appellant. Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Dennis Wayne Fitzgerald pled guilty to escaping from the

Salvation Army Community Corrections Center, in violation of 18

U.S.C. § 751(a) (2000).           The presentence investigation report

(“PSR”) recommended that Fitzgerald be sentenced as a career

offender based on the instant offense, his prior felony conviction

for selling cocaine, and his two prior felony convictions for

escape.    The district court adopted the findings in the PSR and

sentenced Fitzgerald to forty-three months of imprisonment, to be

followed by a three-year term of supervised release.

     Fitzgerald’s counsel filed a brief pursuant to Anders v.

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

meritorious grounds for appeal but raising two issues: (1) whether

the district court erred in finding Fitzgerald to be a career

offender under U.S. Sentencing Guidelines Manual § 4B1.1 (2001), by

determining that the instant offense of escape and Fitzgerald’s

prior escape convictions constituted crimes of violence; and (2)

whether   Fitzgerald     received   ineffective    assistance    of    counsel

because counsel failed to move for a downward departure based on an

overstated criminal history.        Fitzgerald was advised of his right

to file a pro se supplemental brief but has declined to do so.

     We have reviewed the record and conclude that the district

court properly sentenced Fitzgerald as a career offender.                     See

United    States    v.   Dickerson,   77    F.3d   774   (4th   Cir.    1996).


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Furthermore,      Fitzgerald’s    claim      of    ineffective    assistance       of

counsel should be brought, if at all, in a proceeding under 28

U.S.C. § 2255 (2000), because the record in this appeal does not

conclusively establish ineffective assistance of counsel.                         See

United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

     In    accordance   with     the   requirements        of   Anders,    we   have

reviewed    the   entire   record      in   this    case   and   have     found    no

meritorious issues for appeal. Accordingly, we affirm Fitzgerald’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




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