                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4123


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TRAYONE MAURICE BURTON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cr-00773-JFA-1)


Submitted:   June 29, 2010                     Decided:   July 9, 2010


Before WILKINSON and      KEENAN,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Eric Hardy Imperial, THE LAW OFFICES OF ERIC H. IMPERIAL,
Washington, D.C., for Appellant.    John David Rowell, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Trayone Maurice Burton appeals his conviction and 360

month      sentence      for    conspiracy        to   possess         with   intent     to

distribute and to distribute five kilograms or more of powder

cocaine and 1,000 kilograms or more of marijuana, in violation

of 21 U.S.C. §§ 841, 846 (2006) (Count 1); aiding and abetting

in   the    possession         with    intent     to   distribute        marijuana,      in

violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (2006) (Count 2);

and being a felon in possession of firearms, in violation of 18

U.S.C. §§ 922, 924 (2006) (Count 4).                        Appellate counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 739

(1967),         questioning      whether     Burton’s       first        attorney       was

ineffective        and   whether       Burton’s     sentence      was     substantively

reasonable, but determining there are no meritorious issues on

appeal.          Additionally, Burton’s counsel indicated that Burton

wished to raise three issues on appeal:                    that the district court

erred      in     calculating        the   drug    weight        for    which    he     was

responsible, rather than the allowing it to be calculated by a

jury;      the    jury   should       have   received       an    instruction         under

Pinkerton v. United States, 328 U.S. 640 (1946); and the judge

should have granted Burton’s motion for a mistrial, based on a

witness’s        reference      to    Burton’s     prior    cooperation         with    the

Government.        The Government has elected not to file a brief.                       We

affirm.

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               Burton’s        attorney        first       contends       that        Burton’s

original       attorney       “failed     to        represent     Mr.     Burton       in    any

meaningful      manner.”         In    particular,         Burton’s     counsel        alleges

that    Burton’s       former         attorney        allowed     the      Government         to

interview      Burton     on    numerous        occasions        outside       of    counsel’s

presence, and Burton contended during the trial that his former

attorney       instructed       him      to     withhold        information          from    the

Government.

               Claims of ineffective assistance of counsel are not

cognizable       on    direct     appeal        unless     the    record       conclusively

establishes ineffective assistance.                     United States v. James, 337

F.3d 387, 391 (4th Cir. 2003); United States v. Richardson, 195

F.3d    192,     198    (4th      Cir.        1999).       To     allow      for      adequate

development       of    the     record,        generally     claims       of    ineffective

assistance should be brought in a 28 U.S.C.A. § 2255 (West 2006

& Supp. 2010) motion.             United States v. King, 119 F.3d 290, 295

(4th Cir. 1997).          After reviewing the record, we find that it

does     not      conclusively           establish         ineffective          assistance.

Therefore,      Burton’s       claims     of    ineffective        assistance          are   not

cognizable on direct appeal.

               Burton’s counsel next contends that Burton’s sentence

was    unreasonable,      as     Burton       received      insufficient            credit   for

both    his     substantial       assistance          to   the    Government          and    his

acceptance       of    responsibility.                “Regardless       of     whether       the

                                                3
sentence imposed is inside or outside the [g]uidelines range,

the appellate court must review the sentence under an abuse-of-

discretion standard.”             Gall v. United States, 552 U.S. 38, 51

(2007).      Appellate courts are charged with reviewing sentences

for both procedural and substantive reasonableness.                         Id.

             In     determining      procedural           reasonableness,        we     first

assess      whether    the    district         court       properly      calculated       the

defendant’s advisory guidelines range.                      Gall, 552 U.S. at 49-50.

We   must    then    determine      whether         the   district      court    failed    to

consider      the     18    U.S.C.    § 3553(a)           (2006)     factors      and     any

arguments presented by the parties, treated the guidelines as

mandatory,        selected    a    sentence         based    on    “clearly      erroneous

facts,” or failed to sufficiently explain the selected sentence.

Id. at 51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).      Finally, we review the substantive reasonableness of the

sentence,         “taking     into        account         the     ‘totality       of      the

circumstances, including the extent of any variance from the

[g]uidelines range.’”             Pauley, 511 F.3d at 473 (quoting Gall,

552 U.S. at 51).

             We     afford   sentences         that       fall    within   the    properly

calculated     guidelines         range    a       presumption     of    reasonableness.

See Gall, 552 U.S. at 51.                 Such a presumption can be rebutted

only by showing “that the sentence is unreasonable when measured

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

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

citation omitted).                After reviewing the record, we find that

Burton’s      sentence           is    both      procedurally         and       substantively

reasonable.

              Finally,           Burton’s      counsel       raises      three     additional

issues   in    the        Anders      brief    at    Burton’s      instruction.           First,

Burton avers that the district court erred in calculating the

drug weight attributable to Burton, rather than allowing the

weight to be calculated by the jury.                         We find this issue to be

without merit.

              Next, Burton contends that the jury should have been

instructed that it needed to make a finding as to the drug

quantity      specifically            applicable      to     him    in       accordance    with

Pinkerton v. United States, 328 U.S. 640 (1946).                                However, the

principles outlined in Pinkerton are only applicable “when a

conspirator is charged with a substantive offense arising from

the    actions       of    a     coconspirator,        not    when       a    conspirator    is

charged with conspiracy.”                     United States v. Collins, 415 F.3d

304,   313    (4th        Cir.    2005).        Because      Burton      was    charged    with

conspiracy, Pinkerton has no bearing on Burton’s conviction, and

this issue is without merit.

              Finally, Burton contends that the district court erred

in denying his motion for a mistrial.                        We review the denial of a

motion   for     a    mistrial         for    abuse    of    discretion.          See     United

                                                 5
States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997).                                    “In

order for the trial court’s ruling to constitute such an abuse

of discretion, the defendant must show prejudice; no prejudice

exists,       however     if   the     jury       could       make     individual     guilt

determinations           by     following               the     court’s           cautionary

instructions.”          United States v. Dorsey, 45 F.3d 809, 817 (4th

Cir.    1995).         After   reviewing      the       record,      we    find    that   the

district court did not abuse its discretion in denying Burton’s

motion for a mistrial.               See United States v. Vogt, 910 F.2d

1184, 1193 (4th Cir. 1990) (finding that witness’s impermissible

testimony       was     incidental     and        not    repeatedly        referenced      by

witness or prosecution, and therefore did not warrant mistrial).

               We have reviewed the record in accordance with Anders

and    found    no    meritorious      issues      on    appeal.          Accordingly,     we

affirm the judgment of the district court.                           This court requires

that counsel inform Burton in writing of his right to petition

the Supreme Court of the United States for further review.                                If

Burton 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

the client.           We dispense with oral argument because the facts

and legal contentions are adequately expressed in the materials



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before   the   court,   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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