                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-4561


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

GEORGE CARTER,

                 Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:05-cr-00068-JPB-DJJ-5)


Submitted:   February 28, 2012             Decided:   March 2, 2012


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Martin P. Sheehan, SHEEHAN & NUGENT, P.L.L.C., Wheeling, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, Paul T. Camilletti, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              George   Carter    appeals       an   order    revoking   supervised

release and the resulting twenty-four-month sentence imposed by

the district court.          On appeal, counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting that, in

his opinion, there are no meritorious issues for appeal, but

questioning       whether:          (1)        Carter       can   challenge    the

reasonableness of his original sentence as part of this appeal;

(2)   Carter     can    challenge    the        twenty-four-month       supervised

release sentence on the ground that when it is coupled with his

original sentence of fifty-seven months in prison it exceeds the

sixty-month statutory maximum for his 18 U.S.C. § 371 (2006)

offense; (3) Carter is entitled to relief based on the district

court’s failure to advise him during the Fed. R. Crim. P. 11

colloquy that he could ultimately be required to serve more than

sixty months in prison if he violated the conditions of his

supervised release; (4) Carter was denied access to conflict-

free counsel during the original and revocation proceedings; and

(5)   the   district    court    abused       its   discretion     in   sentencing

Carter   to    twenty-four      months’       imprisonment.       The   Government

filed a responsive brief, arguing that Carter is not entitled to

relief on any of the grounds alleged.                   Carter has filed three

pro se supplemental briefs, arguing that his original conviction



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is invalid and that the district court erred in denying him bond

before his revocation sentencing.

             First,     we    conclude     that        Carter   cannot      attack     the

reasonableness of his original sentence in this appeal.                               Under

the law of the case doctrine, once an appellate court “decides

upon a rule of law, that decision should continue to govern the

same issues in subsequent stages in the same case.”                                 United

States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (internal

quotation marks omitted).            Because we expressly found on direct

appeal   that     Carter’s        sentence       was    reasonable       and   that    the

district     court    complied      with     Rule      11    requirements,      Carter’s

attempt to relitigate his original sentence is not reviewable in

this appeal.         United States v. Carter, 237 F. App’x 888 (4th

Cir. 2007) (No. 06-4831); see also United States v. Warren, 335

F.3d   76,   78   (2d      Cir.    2003)     (collecting        cases     holding     that

validity     of   underlying        conviction         may    not   be    attacked      in

supervised release revocation proceeding).

             Next,    we     conclude    that     Carter’s      revocation      sentence

cannot be attacked on the ground that when it is coupled with

his original fifty-seven-month sentence the appropriate period

of incarceration he must serve exceeds the sixty-month maximum

authorized     for    his     original     count       of    conviction,       18   U.S.C.

§ 371.     The district court had authority, however, to impose a

sixty-month term of imprisonment under 18 U.S.C. § 371, plus a

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three-year          term     of     supervised       release       that      included       the

possibility of additional imprisonment of up to two years if

Carter violated the conditions of his supervised release.                                    18

U.S.C. § 3583(b)(2), (e)(3) (2006); United States v. McIntosh,

630 F.3d 699, 702 (7th Cir.), cert. denied, 131 S. Ct. 2128

(2011).     Accordingly, Carter is not entitled to relief on this

ground.

               We find unreviewable Carter’s claim that he was denied

access    to    conflict-free         counsel        during      the   original      criminal

proceedings.          As previously noted, Carter cannot challenge the

validity       of    his     underlying        conviction         in   this       proceeding.

Warren, 335 F.3d at 78-79.                    We likewise decline to review on

direct     appeal      Carter’s        claim       that     he    received        ineffective

assistance          during    the     revocation          proceeding.            Ineffective

assistance of counsel claims are not reviewable on direct appeal

unless      counsel’s             deficient        performance         is        conclusively

established by the record; rather, such claims should be raised

under 28 U.S.C.A. § 2255 (West Supp. 2011).                            United States v.

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

               We also conclude that the claims raised in Carter’s

pro se supplemental briefs are without merit.

               We next review Carter’s revocation sentence under a

plainly    unreasonable            standard     of    review.          United      States   v.

Crudup,    461       F.3d    433,    437   (4th      Cir.     2006).        In    determining

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whether      a     sentence      is    plainly       unreasonable,            we    must     first

consider whether the sentence imposed is unreasonable, following

“the procedural and substantive considerations that we employ in

our review of original sentences.”                         Id.        Only if we find the

sentence         procedurally      or    substantively               unreasonable         must   we

decide whether it is “plainly” so.                          United States v. Moulden,

478   F.3d       652,    657    (4th    Cir.    2007).           A    sentence       is    plainly

unreasonable if it runs afoul of clearly settled law.                                       United

States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010).

              Under       the    procedural          considerations            applicable        to

revocation        sentences,      it    is     clearly       settled      that       a    district

court   must       sufficiently         explain       the    reasons          for    the    chosen

sentence so that this court may effectively review it.                                    Moulden,

478   F.3d       at     657.     “This       requirement         applies       regardless        of

whether the district court imposes an above, below, or within-

Guidelines        sentence.”           Thompson,       595       F.3d    at    547       (internal

quotation marks and alteration omitted).

              To preserve a claim of procedural sentencing error for

plainly unreasonable appellate review, “a defendant need only

ask for a sentence outside the range calculated by the court

prior to sentencing.”             Id. at 546.          If a district court commits

a   procedural          sentencing      error       that    is       plainly       unreasonable,

i.e., plainly in contravention of circuit authority, we will

grant relief unless we can conclude that the error was harmless.

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Id. at 548.       The party defending the ruling below bears the

burden of showing that the error was harmless.                   United States v.

Lynn, 592 F.3d 572, 585 (4th Cir. 2010).

            Having      conducted       an      Anders     review      of     Carter’s

sentence,    we   concluded        that       the     district   court       did   not

adequately   explain     its     reasons      for     imposing   the   twenty-four-

month revocation sentence, and that Carter preserved this claim

for appellate review.          We requested supplemental briefing from

the parties on whether the district court’s failure to explain

its reasons for the twenty-four-month revocation sentence was

harmless error.         Carter’s counsel filed a supplemental brief,

arguing   that    the    error    was     not    harmless.       The    Government,

conceding the error and making no effort to show that the error

is harmless, filed a motion to remand for resentencing.

            We cannot assume that the district court’s sentence

would not be affected by its explicit consideration of Carter’s

arguments in his and counsel’s presence and a requirement that

it   explain      the     rationale           underpinning       its        sentencing

determination     in    open     court.         See   Lynn,   592   F.3d      at   585.

Accordingly, while we affirm the district court’s revocation of




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Carter’s supervised release, we vacate the sentence and remand

for resentencing. *

            In accordance with Anders, we have reviewed the entire

record in this case and found no other meritorious issues.                    This

court    requires   that   counsel   inform   Carter    in    writing    of    his

right to petition the Supreme Court of the United States for

further review.         If Carter 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 Carter.

            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 IN PART,
                                                              VACATED IN PART,
                                                                  AND REMANDED

     *
       Having found the district court’s revocation sentence to
be procedurally flawed, we have not considered its substantive
reasonableness. See United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (“If, and only if, we find the sentence
procedurally   reasonable  can   we   consider   the   substantive
reasonableness   of   the   sentence.”).       Accordingly,   this
disposition should not be construed as indicating any view by
this court as to whether a twenty-four-month revocation sentence
is or is not plainly unreasonable.




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