                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5035


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL WARREN JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-11)


Submitted:   June 29, 2010                 Decided:   July 16, 2010


Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Michael Warren Johnson appeals his conviction and 168

month   sentence     for    one    count       of   possession    with       intent   to

distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

846, 851 (2006).           His attorney has filed a brief pursuant to

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

are no meritorious issues for appeal, but questioning whether

the   district     court    properly   calculated        and   imposed       Johnson’s

sentence and whether Johnson received ineffective assistance of

counsel.       Although Johnson was notified of his right to file a

pro se supplemental brief, he has not done so.                   We affirm.

               We review a sentence for reasonableness under an abuse

of discretion standard.           Gall v. United States, 552 U.S. 38, 51

(2007).        This review requires appellate consideration of both

the   procedural     and    substantive        reasonableness     of     a   sentence.

Id.       In     determining      whether       a   sentence     is    procedurally

reasonable, we first assess whether the district court properly

calculated the defendant’s advisory guideline range.                         See Gall,

552 U.S. at 49, 51.         We then consider whether the district court

failed to consider the 18 U.S.C. § 3553(a) (2006) factors and

any   arguments     presented     by   the      parties,   selected      a    sentence

based on “clearly erroneous facts,” or failed to sufficiently

explain the selected sentence.             See id. at 49-50, 51.



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               Finally, we review the substantive reasonableness of

the     sentence,       “taking       into        account       the     ‘totality         of     the

circumstances, including the extent of any variance from the

Guidelines range.’”             United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51).                                  When reviewing

the district court’s application of the sentencing guidelines,

we review findings of fact for clear error and questions of law

de     novo.      United        States          v.       Osborne,     514    F.3d       377,     387

(4th Cir.), cert. denied, 128 S. Ct. 2525 (2008).                                   We afford a

sentence       within     the    properly                calculated    guideline         range       a

presumption of reasonableness.                       United States v. Green, 436 F.3d

449, 457 (4th Cir. 2006); see Rita v. United States, 551 U.S.

338, 341, 347 (2007).

               On the Government’s motion, Johnson actually received

a     sentence    well     below          his    guideline          term    of     240     months’

imprisonment      (the     statutory            mandatory       minimum).           Counsel      has

identified       no    error    in        this       sentence,      either       procedural         or

substantive, and we concur.

               Finally,    the       claim       that       counsel    may       have    rendered

ineffective      assistance          is    more          appropriately      considered         in    a

post-conviction          proceeding         brought          pursuant       to     28    U.S.C.A.

§ 2255 (West Supp. 2010), unless counsel’s alleged deficiencies

conclusively          appear    on    the        record.         See       United       States      v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                               Because we find

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no   conclusive     evidence      on   the     record    that   counsel      rendered

ineffective assistance, we decline to consider this claim on

direct appeal.

            As required by 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 Johnson, in writing, of the right

to petition the Supreme Court of the United States for further

review.     If    Johnson       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 Johnson.

            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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