                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4708


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ADRIAN CHRISTOPHER SOLARES, a/k/a Joker,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00114-MOC-DSC-1)


Submitted:   March 24, 2015                 Decided:   April 6, 2015


Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, Anthony J. Enright, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Adrian Christopher Solares appeals his convictions and 93-

month sentence imposed after he pled guilty to one count each of

conspiracy to interfere with commerce by threats or violence, in

violation of 18 U.S.C. § 1951(a) (2012); possession of a firearm

in furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1) (2012); and conspiracy to use or carry a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(o) (2012).         Solares asserts that his guilty plea should be

set aside and his case remanded to the district court for trial

because     he    argues     that:      (1)        his     first        attorney    rendered

ineffective assistance of counsel when counsel allegedly advised

Solares that he could not plead guilty to some of the counts

against him and proceed to trial on the remaining counts; and

(2) the district court abused its discretion when it denied his

motion     to    withdraw    his   guilty         plea.       Finding       no     error,   we

affirm.

      First,      we     reject    Solares’s             ineffective       assistance        of

counsel claim on this appeal.                     “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.”                    United States v. Galloway, 749

F.3d 238, 241 (4th Cir.) (internal quotation marks, brackets,

                                              2
ellipsis, and emphasis omitted), cert. denied, 135 S. Ct. 215

(2014).        Absent such a showing, ineffective assistance claims

should    be    raised    in    a    motion       brought   pursuant      to   28   U.S.C.

§ 2255 (2012), in order to permit sufficient development of the

record.       United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th

Cir. 2010).

       To prevail on an ineffective assistance of counsel claim, a

defendant must demonstrate that:                     (1) counsel’s performance was

objectively unreasonable; and (2) defendant was prejudiced by

counsel’s performance.              Strickland v. Washington, 466 U.S. 668,

687-88 (1984).       To demonstrate prejudice, “[t]he defendant must

show    that    there     is    a    reasonable        probability     that,      but   for

counsel’s unprofessional errors, the result of the proceeding

would have been different.”                 Id. at 694.      Within the context of

a guilty plea, prejudice exists if the defendant “show[s] that

there    is    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).

To   establish     that    he       would    have    proceeded    to     trial    but   for

counsel’s      alleged    pre-plea          error,    Solares    “must    convince      the

court that such a decision would have been rational under the

circumstances.”         United States v. Fugit, 703 F.3d 248, 260 (4th

Cir. 2012) (internal quotation marks omitted).                       We have reviewed

the record and find that it does not conclusively appear from

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the     record     that     counsel       provided     ineffective         assistance.

Accordingly,       we     reject     Solares’s      ineffective       assistance      of

counsel claim on this direct appeal.

      We reject Solares’s argument that his plea should be set

aside    and     the    matter     remanded      because    the   magistrate     judge

should have allowed him to withdraw his guilty plea.                           First,

Solares    never       appealed    the   magistrate        judge’s   ruling    to   the

district       court.      Accordingly,          Solares    has   waived     appellate

review of this issue.              Fed. R. Crim. P. 59; United States v.

Schronce, 727 F.2d 91, 93–94 (4th Cir. 1984) (“We do not believe

. . . that the [Federal Magistrates] Act can be interpreted to

permit a party . . . to ignore his right to file objections with

the district court without imperiling his right to raise the

objections in the circuit court of appeals.”).

      In any event, we find no error in the magistrate judge’s

decision to deny Solares’s motion to withdraw.                       A defendant has

no absolute right to withdraw his guilty plea, and he bears the

burden of “show[ing] a fair and just reason” for doing so.                          Fed.

R. Crim. P. 11(d)(2)(B); see United States v. Nicholson, 676

F.3d 376, 383-84 (4th Cir. 2012).                 This court has identified six

factors    that    the    district       court    should    evaluate    in    deciding

whether to grant a motion for withdrawal of a guilty plea.                          See

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).                          The

magistrate judge, upon reviewing these factors, concluded that

                                            4
Solares failed to make the necessary showing.                 We find that the

magistrate    judge    did    not   abuse   his    discretion         in    denying

Solares’s motion.

     Accordingly, we affirm the district court’s judgment.                      We

dispense     with    oral    argument   because        the    facts   and     legal

conclusions    are    adequately    presented     in    the   materials      before

this court and argument would not aid the decisional process.



                                                                           AFFIRMED




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