                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4472


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KAREEM KABBAR WEBB,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:09-cr-00021-RLV-DCK-1)


Submitted:   September 29, 2011           Decided:   October 25, 2011


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Faith S. Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Mark A. Jones, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Kareem        Kabbar      Webb   pleaded       guilty     pursuant       to     a

written   plea        agreement       to    drug      and   firearm     offenses.        Webb

agreed to waive all rights to appeal the conviction and sentence

with the exception of “(1) claims of ineffective assistance of

counsel or (2) prosecutorial misconduct.”                       He was sentenced as a

career offender to 262 months in prison.                        On appeal, Webb claims

that he received ineffective assistance of counsel when counsel

failed    to    challenge          one     of   the    predicate       offenses   used        to

establish his status as a career offender.                       We affirm.

               The     probation         officer      applied    the    career    offender

enhancement          based    on    Webb’s      North       Carolina    convictions          for

common law robbery, for which Webb received a 15 to 18 month

sentence, and breaking and entering, for which he received a 10

to 12 month sentence.                    See U.S. Sentencing Guidelines Manual

§ 5C1.2 (2009).           Counsel objected to application of the career

offender enhancement on the basis of the increased severity of

the sentence, but not based on the use of the predicate felonies

to determine career offender status.                        The court overruled Webb’s

objection and imposed a total sentence of 262 months.

               Webb’s    appeal       is    limited     by    the   terms   of    his    plea

agreement.           His sole issue on appeal is whether he received

ineffective assistance of counsel when counsel did not object to

the use of the conviction for breaking and entering, for which

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he did not receive a sentence in excess of twelve months.                       Webb

argues that, in light of Johnson v. United States, 130 S. Ct.

1265   (2010),    and     United    States     v.    Rodriquez,   553    U.S.    377

(2008), counsel should have argued that the conviction was not a

valid predicate offense.

           Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.                 United States v. King, 119

F.3d 290, 295 (4th Cir. 1997).                 Rather, to allow for adequate

development of the record, a defendant generally must bring his

claims in a 28 U.S.C.A. § 2255 (West Supp. 2011) motion.                        Id.;

United   States    v.     Hoyle,   33   F.3d     415,   418   (4th    Cir.   1994).

However, ineffective assistance claims are cognizable on direct

appeal   if     the      record    conclusively        establishes    ineffective

assistance.       Massaro v. United States, 538 U.S. 1690, 1693-94

(2003); United States v. Richardson, 195 F.3d 192, 198 (4th Cir.

1999).   To demonstrate ineffective assistance, a defendant must

show that his “counsel’s representation fell below an objective

standard of reasonableness,” and that the error was “prejudicial

to the defense” such 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, 692, 694 (1984).

           We     conclude    that,     even    if    counsel’s   representation

fell below an objective standard of reasonableness, Webb has not

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demonstrated that the alleged error was prejudicial.                     At the

time of Webb’s sentencing, whether a prior conviction qualified

as   a   felony    for   career    offender   purposes   was    determined      by

considering       “the   maximum    aggravated   sentence      that    could    be

imposed for that crime upon a defendant with the worst possible

criminal history.”          United States v. Harp, 406 F.3d 242, 246

(4th Cir. 2005).         While Webb’s appeal was pending, however, Harp

was overruled by the en banc decision in Simmons.                     See United

States v. Simmons, 649 F.3d 237, 2011 WL 3607266, at *3 (4th

Cir. Aug. 17, 2011).         Simmons held that a prior North Carolina

offense was punishable for a term exceeding one year only if the

particular defendant before the court had been eligible for such

a sentence under the applicable statutory scheme, taking into

account his criminal history and the nature of his offense.                    Id.

at *8; see also N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009)

(setting forth North Carolina’s structured sentencing scheme).

            Under Simmons, Webb’s breaking and entering conviction

does not appear to be a crime punishable by imprisonment for a

term exceeding one year.           We do not have the state court record

on appeal.        However, in light of Webb’s 10-12 month sentences,

under the North Carolina sentencing table, it appears that Webb

could not have received a sentence of more than twelve months if

he had been sentenced in the presumptive range.                 See N.C. Gen.

Stat. § 15A-1340.17(c), (d).

                                        4
            Simmons        notwithstanding,          at      the      time        of     Webb’s

conviction      and     sentencing,    Harp    was     the      law    in    the       circuit.

Thus,    even    if     counsel     had   objected,        the      court        would     have

overruled       the     objection     because     the        maximum        sentence        any

defendant       could     have    received      was       thirty       months,         thereby

satisfying       the     career     offender     requirement.                Because       the

sentencing      outcome     would     have     been       the      same,     Webb        cannot

demonstrate       prejudice.              Accordingly,             counsel         was      not

ineffective.

            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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