                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4421


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

REGINO SALAS-CRUZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00128-RJC-1)


Submitted:   February 20, 2013            Decided:   February 28, 2013


Before SHEDD, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth Darwin Snow, THE SNOW LEGAL GROUP, PLLC, Charlotte,
North Carolina, for Appellant.     Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Regino Salas-Cruz pleaded guilty pursuant to a plea

agreement to conspiracy to distribute and possess with intent to

distribute at least one kilogram of heroin, in violation of 21

U.S.C.    §§ 846,     841(b)(1)(A)          (2006).           The   district         court

sentenced     Salas-Cruz      to    seventy        months’       imprisonment.          On

appeal,     counsel   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 sufficiently explained the imposed sentence.                             In

Salas-Cruz’s pro se supplemental brief, he argues that his trial

counsel   was   ineffective        in   failing         to   adequately     advise     him

regarding his guilty plea, and he attempts to clarify that his

involvement     in    the    conspiracy         was     minor.       The    Government

declined to file a responsive brief.                    Following a careful review

of the record, we affirm.

            Because Salas-Cruz did not move in the district court

to withdraw his guilty plea, we review the Rule 11 hearing for

plain error.     United States v. Martinez, 277 F.3d 517, 525 (4th

Cir. 2002).      To prevail under this standard, Salas-Cruz must

establish that an error occurred, was plain, and affected his

substantial rights.         United States v. Massenburg, 564 F.3d 337,

342-43 (4th Cir. 2009). Our review of the record establishes

that the district court substantially complied with Rule 11’s

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requirements, ensuring that Salas-Cruz’s plea was knowing and

voluntary.

            We    review     Salas-Cruz’s         sentence   under   a     deferential

abuse-of-discretion standard.                Gall v. United States, 552 U.S.

38, 51 (2007).          This review requires consideration of both the

procedural and substantive reasonableness of the sentence.                         Id.;

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                          After

determining whether the district court correctly calculated the

advisory    Guidelines       range,     we   must     decide     whether    the    court

considered       the     § 3553(a)      factors,       analyzed      the     arguments

presented    by        the   parties,    and       sufficiently      explained      the

selected sentence.           Lynn, 592 F.3d at 575-76; United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).

            Once we have determined that the sentence is free of

procedural error, we consider the substantive reasonableness of

the   sentence,        “tak[ing]     into        account   the    totality    of    the

circumstances.”          Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.

If the sentence is within the appropriate Guidelines range, we

apply a presumption on appeal that the sentence is reasonable.

United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.

2010).     Such a presumption is rebutted only if the defendant

demonstrates “that the sentence is unreasonable when measured

against the § 3553(a) factors.”                  United States v. Montes-Pineda,



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445   F.3d    375,    379    (4th    Cir.   2006)        (internal    quotation     marks

omitted).

              We conclude that the district court committed neither

procedural      nor    substantive        error     in    sentencing.        The    court

verified that Salas-Cruz discussed the presentence report with

his attorney, ensured that Salas-Cruz had no objections to the

presentence        report,     and       heard     argument        from   counsel     and

allocution from Salas-Cruz.               The court accurately calculated and

considered as advisory Salas-Cruz’s applicable Guidelines range.

The district court also considered the § 3553(a) factors and

explained that the within-Guidelines sentence was warranted in

light of Salas-Cruz’s lack of criminal history, the seriousness

of the offense, and Salas-Cruz’s involvement in the conspiracy.

Further, neither counsel nor Salas-Cruz offers any grounds to

rebut   the     presumption         on   appeal     that     the     within-Guidelines

sentence      of     seventy    months’          imprisonment        is   substantively

reasonable.        Accordingly, we conclude that the district court

did not abuse its discretion in sentencing Salas-Cruz.

              In his pro se brief, Salas-Cruz asserts that his trial

counsel rendered ineffective assistance.                     Claims of ineffective

assistance of counsel are generally not cognizable on direct

appeal,      unless   the    record       conclusively       establishes     counsel’s

“objectively unreasonable performance” and resulting prejudice.

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).                           The

                                            4
record     does    not    conclusively       establish     that    trial     counsel

rendered ineffective assistance to Salas-Cruz.                    Salas-Cruz must

therefore    bring       his   allegation    of   ineffective      assistance     of

counsel in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion, should

he wish to pursue such a claim.              United States v. Baptiste, 596

F.3d 214, 216 n.1 (4th Cir. 2010).

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.       We     therefore     affirm     Salas-Cruz’s        conviction    and

sentence.        This court requires that counsel inform Salas-Cruz,

in writing, of the right to petition the Supreme Court of the

United States for further review.              If Salas-Cruz 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 Salas-Cruz.

            We dispense with oral argument because the facts and

legal    contentions      are    adequately    presented     in    the     materials

before    this    court    and   argument    would   not   aid    the    decisional

process.

                                                                            AFFIRMED




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