                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4537


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JAMES RHETT MILLER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Henry M. Herlong, Jr., District
Judge. (8:07-cr-00936-HMH-1)


Submitted:    November 17, 2008            Decided:   December 16, 2008


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.       Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James        Rhett     Miller      pled       guilty,        without         a     plea

agreement,        to     possession       of       an    unregistered          firearm,         in

violation of 26 U.S.C. § 5861(d) (2000).                          Miller was sentenced

to 115 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         are    no

meritorious grounds for appeal, but questioning whether Miller’s

sentence    is    reasonable.         Miller        filed     a   pro    se     supplemental

brief,   contending        that    the    Fed.      R.    Crim.     P.    11    hearing        was

inadequate and that his counsel provided ineffective assistance.

The Government elected not to file a responding brief.

            Miller initially questions the adequacy of the Rule 11

hearing.      Because Miller did not seek to withdraw his guilty

plea   in   the        district    court,      any      alleged     Rule       11     error     is

reviewed    by     this    court    for     plain        error.         United      States      v.

Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002).                                To establish

plain error, Miller 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 208, 215 (4th Cir.

2005).       We    have     reviewed       the       record       and    find       no       error.

Additionally,          Miller’s     conclusory            assertions           that      he     is

“actually innocent” of the offense and that his plea was not



                                               2
knowingly and voluntarily made are directly contradicted by the

record.

               Miller     next     questions      whether       his    sentence      is

reasonable.        When determining a sentence, the district court

must    calculate       the   appropriate      advisory   Guidelines        range   and

consider it in conjunction with the factors set forth in 18

U.S.C. § 3553(a) (2006).              Gall v. United States, 128 S. Ct. 586,

596 (2007).       Appellate review of a district court’s imposition

of a sentence, “whether inside, just outside, or significantly

outside the Guidelines range,” is for abuse of discretion.                          Id.

at 591.    Sentences within the applicable Guidelines range may be

presumed by the appellate court to be reasonable.                     United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

               The district court followed the necessary procedural

steps     in     sentencing        Miller,       appropriately        treating      the

Sentencing       Guidelines      as    advisory,    properly      calculating       and

considering the applicable Guidelines range, and weighing the

relevant   §     3553(a)      factors.       Furthermore,       Miller’s    sentence,

which is no greater than the applicable Guidelines range and

below     the     ten-year       statutory       maximum,       may    be    presumed

reasonable.       Thus, we conclude that the district court did not

abuse its discretion in imposing the chosen sentence.

               Miller    finally      contends    that    his    counsel     provided

ineffective assistance.               An ineffective assistance of counsel

                                           3
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, 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,      Miller’s

claim is not cognizable on direct 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

                                            4
