                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4318


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JOEL EUGENE HENRY, a/k/a Sleepy,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:06-cr-00022-RLV-CH-1)


Submitted:    June 9, 2009                    Decided:   July 6, 2009


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant.   Thomas Richard Ascik, Amy Elizabeth
Ray,  Assistant   United States   Attorneys,  Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Joel Eugene Henry pled guilty pursuant to a written

plea     agreement         to    conspiracy         to        possess       with     intent     to

distribute         fifty    grams     or    more         of     cocaine       base     and    five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846

(2006), and was sentenced to 210 months in prison.                                 Henry timely

appealed.

              Counsel for Henry filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), certifying that there

are no meritorious grounds for appeal, but questioning whether

trial counsel provided ineffective assistance.                               Henry has filed

a    supplemental        pro     se   letter       that       also     asserted       his    trial

counsel      was    ineffective.           Finding            no     reversible       error,    we

affirm.

              Henry’s        counsel       argues         that        trial        counsel     was

ineffective for withdrawing his objections to two enhancements

in     the   presentence         report     when         the       objections        could     have

resulted      in     a     four-level      decrease           in     offense       level.       At

sentencing, counsel explained that he withdrew the objections

because      the     seven-level        departure             that    the     Government       was

recommending for Henry’s substantial assistance resulted in a

much a larger sentence decrease.

              Claims        of    ineffective        assistance             of     counsel     are

generally not cognizable on direct appeal.                                  United States v.

                                               2
King, 119 F.3d 290, 295 (4th Cir. 1997).                                Instead, ineffective

assistance      claims          are    appropriately             brought         pursuant    to   28

U.S.C.A.      § 2255        (West          Supp.    2008)        to     allow       for    adequate

development of the factual record.                             Id.     A defendant may raise

an ineffective assistance claim on direct appeal only if the

record conclusively demonstrates that defense counsel did not

provide effective representation.                            United States v. Baldovinos,

434    F.3d    233,       239    (4th       Cir.        2006).         To    prove    ineffective

assistance      a    defendant         must    show          both:      (1)      “that    counsel’s

representation            fell         below            an      objective           standard      of

reasonableness” and (2) “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding          would       have         been        different.”                Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984).

              Here,       the     sentencing            record       does     not    conclusively

demonstrate that counsel was ineffective.                              Counsel’s decision to

withdraw the objections to the enhancements was tactical, and

thus   is     entitled      to    a        strong       presumption         of    reasonableness.

Strickland,         466   U.S.        at    689.        Nor     does    Henry       demonstrate     a

reasonable probability that the court would have lowered his

sentencing      guidelines            range    any           further    if    counsel       had   not

withdrawn      the        objections.               Because          the     record       does    not




                                                    3
conclusively demonstrate ineffective assistance, this claim is

not cognizable on direct appeal. *

                   In accordance with Anders, we have reviewed the record

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

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

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

petition       the     Supreme     Court    of       the    United     States      for   further

review.        If Henry 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 Henry.

                   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




        *
       Under like reasoning, Henry’s pro se contention that his
trial counsel afforded ineffective representation must be raised
in an appropriate post-conviction proceeding rather than on
direct appeal.   We find no merit to the remaining issues Henry
raises in his pro se submission.



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