                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 06-5216


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FREDERICK DEVON FLEMING,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:06-cr-00245-WLO)


Submitted:   April 22, 2009                 Decided:   March 19, 2010


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, P.A., Greensboro,
North Carolina, for Appellant.  Paul Alexander Weinman, OFFICE
OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Frederick     Devon    Fleming      pled      guilty    pursuant         to    a

written plea agreement to possession with intent to distribute

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

(2006).      Fleming     was    sentenced     to    132    months’       imprisonment.

Finding no error, we affirm.

             Counsel      filed    a     brief       pursuant       to     Anders          v.

California, 386 U.S. 738 (1967), in which he asserts there are

no meritorious issues for appeal but questions the conviction

and sentence.       Fleming was notified of his right to file a pro

se supplemental brief, but he did not do so.                          The Government

elected not to file a responsive brief.

             Initially, counsel contends that Fleming’s conviction

should be vacated because the confidential informant, who was

allegedly on probation, did not have the court’s permission to

act   as    an   informant.        The   factual         basis   proffered       by    the

Government at the Fed. R. Crim. P. 11 hearing, to which Fleming

did   not   object,      established     that      the    informant      was    properly

acting at the behest of state law enforcement officers.                           Thus,

Fleming cannot establish any error in this respect.                            Moreover,

we conclude the district court fully complied with Rule 11 as it

thoroughly discussed Fleming’s right to a trial, the nature of

the   offense,     and    the   applicable       punishment,        in    addition         to

ascertaining that a factual basis supported the offense.

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             Counsel       next     contends       that    a   category      of   VI    over-

represented        the     seriousness        of     Fleming’s        criminal     history

because    fifteen        of   the    twenty-four         points      imposed     were    the

result of driving with a revoked license.                          As Fleming did not

object     to     the     calculation    of       his     criminal     history     in    the

district court, review is for plain error.                       See United States v.

Branch, 537 F.3d 328, 343 (4th Cir. 2008), cert. denied, 129 S.

Ct. 943 (2009).            To establish plain error, the defendant must

show that an error occurred, that the error was plain, and that

the error affected the defendant’s substantial rights.                                 United

States v. Olano, 507 U.S. 725, 732-34 (1993).

             The        district     court        properly      calculated        Fleming’s

criminal        history     category.        Our     review      of    the    Presentence

Investigation Report (“PSR”) also shows that Fleming has twenty-

four prior criminal convictions, seven of which contributed to

the criminal history points.                 Two of the prior convictions were

for drug―related offenses, and one of those involved possession

with   intent      to    distribute     crack.          Thus,    application       of    U.S.

Sentencing Guidelines Manual § 4A1.3(b) (2005), based upon an

over—representation            of    criminal        history,         clearly     was     not

merited.

             Counsel also asserts that the district court erred in

failing to consider the sentencing disparity between crack and

powder cocaine.           At the time of Fleming’s sentencing hearing on

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November 15, 2006, this court’s precedent did not allow district

courts to consider the disparity created by the 100:1 crack to

powder    cocaine    ratio     in     determining      an   appropriate         sentence.

See United States v. Eura, 440 F.3d 625, 632-34 (4th Cir. 2006).

However,       the   Supreme        Court     determined        that     “the    cocaine

Guidelines, like all other Guidelines, are advisory only” and,

in doing so, overruled Eura.                 Kimbrough v. United States, 552

U.S. 85, 91 (2007).           The Court stated that “it would not be an

abuse    of    discretion      for    a     district    court     to    conclude     when

sentencing       a   particular           defendant     that      the     crack/powder

disparity yields a sentence ‘greater than necessary’ to achieve

§ 3553(a)’s purposes, even in a mine-run case.”                    Id. at 110.

               Since Fleming did not object to his sentence in the

district court, review is for plain error.                     See Branch, 537 F.3d

at   343.        Assuming       the       court’s     failure     to     consider     the

crack/powder disparity constitutes error that was plain, it must

still be established that the error affected the defendant’s

substantial rights.           See id.       We previously have “concluded that

the error of sentencing a defendant under a mandatory guidelines

regime    is    neither   presumptively           prejudicial      nor    structural,”

thereby     requiring     a    showing       of   “actual   prejudice.”           United

States v. White, 405 F.3d 208, 223 (4th Cir. 2005).                             Thus, to

satisfy the requirements of the plain error standard, the burden

is on the defendant to establish that the error “affected the

                                             4
outcome       of   the    district      court     proceedings.”                Id.    (internal

quotation marks and citation omitted).                        Because the record does

not   reveal       a     nonspeculative       basis         for    concluding        that     the

district      court      would   have    imposed        a    shorter      sentence      had    it

known    it     possessed    discretion         to    do     so,    we    conclude      Fleming

cannot demonstrate that the district court’s failure to consider

the crack/powder disparity affected his substantial rights.

               Finally, counsel contends that Fleming’s trial counsel

provided ineffective assistance.                     An ineffective assistance of

counsel claim generally is not cognizable on direct appeal, but

should instead be asserted in a post-conviction motion under 28

U.S.C.A.        § 2255     (West   Supp.      2008).              See    United      States    v.

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

recognized         an     exception      to       the       general       rule       when     “it

‘conclusively appears’ from the record that defense counsel did

not   provide       effective      representation.”                 Id.    (quoting      United

States     v.      Gastiaburo,     16    F.3d        582,     590       (4th   Cir.    1994)).

Because the record does not conclusively establish that counsel

was ineffective, the claim is not cognizable on direct appeal.

               In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for




                                              5
appeal. *      Accordingly, we affirm the judgment of the district

court.       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 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




       *
       Notably, acting sua sponte, we twice placed this case in
abeyance pending decisions that were potentially favorable to
Fleming, including our recent decision in United States v. Lynn,
592 F.3d 572, No. 08-5125(L) (4th Cir. Jan. 28, 2010).
Ultimately, however, Fleming is not entitled to any relief under
Lynn.   In one of the cases consolidated for decision therein
(No. 08-5132), the defendant, Avery Peake, posed no objections
to the PSR and requested a sentence within his advisory
Guidelines range.   Lynn, slip op. at 12-13.   Thus, we reviewed
for plain error Peake’s assertion that the district court
committed procedural error by failing to consider the required
sentencing factors and offer an adequate explanation for the
sentence imposed.    See id. at 4, 12-13.    We determined that,
even assuming the court committed clear error, Peake had not
shown that the error had a prejudicial effect on the sentence
imposed, in that “[h]is attorney’s arguments before the district
court urged that court only to impose a sentence within the
Guidelines range, which it did.”       Id. at 13.     Similarly,
Fleming’s lawyer agreed with the PSR and urged a within-
Guidelines sentence, and the district court imposed such a
sentence.   As such, Fleming cannot show that any procedural
error committed by the court in failing to adequately explain
the chosen sentence was prejudicial, and we must affirm
Fleming’s sentence on plain error review.



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adequately   presented   in   the   materials   before   the   court   and

argument would not aid in the decisional process.

                                                                AFFIRMED




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