                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4460


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

CHRISTOPHER LEE DAVIS,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00230-RJC-DSC-1)


Submitted: May 13, 2019                                           Decided: May 23, 2019


Before KING and AGEE, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. Edward Yeager, Jr., Cornelius, North Carolina, for Appellant. R. Andrew Murray,
United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Christopher Lee Davis pled guilty to conspiracy to distribute and to possess with

intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1), 846 (2012), and possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2012). Davis was found to be a

career offender and was sentenced to 262 months in prison. He appeals, claiming that

counsel was ineffective for failing to challenge his career offender status. We affirm.

       In United States v. Galloway, 749 F.3d 238 (4th Cir. 2014), we observed:

       It is well established that a defendant may raise a claim of ineffective
       assistance of counsel in the first instance on direct appeal if and only if it
       conclusively appears from the record that counsel did not provide effective
       assistance. Otherwise, he must raise his claim in the district court by a
       collateral challenge pursuant to 28 U.S.C. § 2255 [2012].

Id. at 241 (alterations and internal quotation marks omitted). To succeed on a claim of

ineffective assistance, Davis must show that counsel’s representation was deficient and

that he was prejudiced by the deficient performance. See Strickland v. Washington, 466

U.S. 668, 687, 688 (1984). To establish prejudice in the context of a guilty plea, Davis

must establish “a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

59 (1985).

       A defendant qualifies as a career offender:

       if (1) the defendant was at least eighteen years old at the time the defendant
       committed the instant offense of conviction; (2) the instant offense of
       conviction is a felony that is either a crime of violence or a controlled
       substance offense; and (3) the defendant has at least two prior felony
       convictions of either a crime of violence or a controlled substance offense.



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U.S. Sentencing Guidelines Manual § 4B1.1(a) (2018). In United States v. Whitley, 737

F. App’x 147 (4th Cir. 2018), we held that Whitley’s prior 21 U.S.C. § 846 drug

conspiracy convictions were not “controlled substance offenses” because a § 846

conspiracy does not require an overt act, and he accordingly lacked the two predicate

felony convictions necessary to be a career offender. Id. at 149. Relying on Whitley,

Davis contends that his offense of conviction—the § 846 drug conspiracy—was similarly

not a “controlled substance offense,” and counsel was ineffective for failing to challenge

his career offender status on this basis.

        “A lawyer does not perform deficiently by failing to raise novel arguments that

are unsupported by then-existing precedent. . . . Nor [is counsel ineffective for] failing to

anticipate changes in the law, or to argue for an extension of precedent.” United States v.

Morris, 917 F.3d 818, 823 (4th Cir. 2019). Davis was sentenced prior to the issuance of

our unpublished Whitley decision. Moreover, several of our published decisions have

ruled that a § 846 drug conspiracy qualifies as a controlled substance offense for career

offender purposes. United States v. Kennedy, 32 F.3d 876, 888 (4th Cir. 1994); see also

United States v. Brandon, 363 F.3d 341, 345 (4th Cir. 2005); United States v. Walton, 56

F.3d 551, 555 (4th Cir. 1995).

       For those reasons, we are satisfied that ineffective assistance of counsel does not

conclusively appear on the face of the record. See United States v. Benton, 523 F.3d 424,

435 (4th Cir. 2008). Davis should thus raise his claim, if at all, in a § 2255 motion filed

in the district court.   See Galloway, 749 F.3d at 241.        We therefore affirm.     The

government’s motion for summary affirmance is denied.              We dispense with oral

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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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