                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 06-5269



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


SYLEST ALI GAINES, a/k/a Jerold M. Lee,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cr-00392-HFF)


Submitted:    June 22, 2007                   Decided:   July 12, 2007


Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell Barnes Cauthen, III, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Sylest   Ali    Gaines    pled     guilty      pursuant       to    a     plea

agreement to one count of possession of a firearm by a felon, one

count   of   possession      of   a   stolen    firearm,      and    one    count        of

possession with intent to distribute cocaine and marijuana, in

violation of 18 U.S.C. §§ 922(g), (j); 924(a)(2), (e); 21 U.S.C.

§ 841(a)(1), (b)(1)(C), (b)(1)(D) (2000).               Gaines was sentenced by

the district court to a total of 168 months’ imprisonment. Finding

no error, we affirm.

             On appeal, counsel filed a brief pursuant to Anders v.

California,     386   U.S.    738     (1967),        asserting      there       were     no

meritorious    grounds      for   appeal,      but    questioning      whether         the

district court fully complied with the requirements of Fed. R.

Crim. P. 11.    Gaines filed a pro se supplemental brief, contending

the district court erred in its application of the Sentencing

Guidelines,     the   Government       breached       the   terms     of    the        plea

agreement, and his counsel provided ineffective assistance.                             The

Government elected not to file a responsive brief.

             Because Gaines did not seek to withdraw his guilty plea

in the district court, we review any alleged Rule 11 error for

plain error.    United States v. Martinez, 277 F.3d 517, 524-26 (4th

Cir. 2002).     To establish plain error, Gaines must show that an

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

affected his substantial rights.          United States v. White, 405 F.3d


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208, 215 (4th Cir. 2005).     We have reviewed the record and find no

error.

            Gaines next contends that the district court erred in its

application of the Sentencing Guidelines.             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. Green, 436 F.3d 449, 456 (4th Cir.), cert.

denied, 126 S. Ct. 2309 (2006).

            Initially, Gaines argues that he does not satisfy the

criteria for enhancement as a career offender.         As Gaines was over

eighteen years old at the time he committed the instant controlled

substance offense, and was previously convicted of assault on an

officer while resisting arrest and possession of cocaine with

intent    to   distribute,   we   conclude   Gaines   was   appropriately

sentenced by the district court as a career offender.         Gaines also

argues that the court erred in determining his criminal history

category.      However, because Gaines was a career offender, his

placement in category VI was required by U.S. Sentencing Guidelines

Manual § 4B1.1(b) (2005).

            Next, Gaines contends that the Government breached the

terms of the plea agreement by making a sentencing recommendation

to the court.    “[W]hen a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such promise must be


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fulfilled.”    Santobello v. New York, 404 U.S. 257, 262 (1971).          “It

is well-established that the interpretation of plea agreements is

rooted in contract law, and that ‘each party should receive the

benefit of its bargain.’”       United States v. Peglera, 33 F.3d 412,

413 (4th Cir. 1994) (quoting United States v. Ringling, 988 F.2d

504, 506 (4th Cir. 1993)).        “A central tenet of contract law is

that no party is obligated to provide more than is specified in the

agreement itself.”     Id.

           Accordingly, “the government’s duty in carrying out its

obligations under a plea agreement is no greater than that of

‘fidelity to the agreement.’”          Id. (quoting United States v.

Fentress, 792 F.2d 461, 464 (4th Cir. 1986)).           As the agreement is

silent on the issue of sentencing recommendations, we conclude

Gaines cannot establish that the Government breached the plea

agreement.    See United States v. Snow, 234 F.3d 187, 189 (4th Cir.

2000) (“It is settled that a defendant alleging the Government’s

breach of a plea agreement bears the burden of establishing that

breach by a preponderance of the evidence.”).

             Gaines finally contends that his counsel was ineffective

for failing to object to the plea agreement and presentence report.

An   ineffective   assistance    of   counsel   claim    is   generally   not

cognizable on direct appeal, but should instead be asserted in a

post-conviction motion under 28 U.S.C. § 2255 (2000).            See United

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


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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, we

conclude Gaines’s claim is not cognizable on appeal.

          In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

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 adequately presented in the

materials before the court and argument would not aid in the

decisional process.



                                                               AFFIRMED




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