                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-4323


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES TYSON, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Graham C. Mullen,
Senior District Judge. (3:12-cr-00239-GCM-DCK-14)


Submitted:   December 20, 2016             Decided:   January 5, 2017


Before KING, SHEDD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dale R. Jensen, DALE JENSEN, PLC, Staunton, Virginia, for
Appellant.    Jill Westmoreland Rose, United States Attorney,
Maria   Kathleen  Vento,   Assistant   United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      James    Tyson,        Jr.,    was    among     26    defendants         indicted      for

their involvement in an extensive fraud conspiracy between 2005

and 2012 that resulted in more than $75 million in losses to

over 60 investors, financial institutions, and lenders.                                 Tyson

pleaded guilty to conspiracy to violate the Racketeer Influenced

and   Corrupt        Organizations         (RICO)        Act,       18    U.S.C.     § 1962(d)

(2012); securities fraud, 15 U.S.C. §§ 78j(b), 78ff (2012); bank

fraud, 18 U.S.C. § 1344 (2012); wire fraud, 18 U.S.C. § 1343

(2012); conspiracy to launder money, 18 U.S.C. § 1956(h) (2012);

and conspiracy to commit bank bribery, 18 U.S.C. § 371 (2012).

The district court calculated a Sentencing Guidelines range of

292 to 365 months in prison and sentenced Tyson to 360 months.

The   court      also        ordered       Tyson      to       pay       $18,847,460.63       in

restitution      to     62    identified       victims.              Tyson     now    appeals,

asserting various challenges to his convictions and sentence.

We affirm.

      Tyson      first       argues    several        claims         of    trial     counsel’s

ineffective assistance in advising him to plead guilty.                                  Tyson

contends      that     trial        counsel        failed      to    investigate       viable

defenses,     such     as    the    impact     that      the     Fraud     Enforcement       and

Recovery Act of 2009 (FERA), Pub. L. No. 111-21, 123 Stat. 1617,

had   on   the    bank       fraud     count       and     the      relevant       statute   of

limitations.         Tyson also contends that trial counsel failed to

                                               2
challenge the securities fraud count on statute of limitations

grounds and improperly advised Tyson to plead guilty to bank

bribery and distribution of illegal drugs as predicate acts of

the RICO conspiracy.            However, claims of ineffective assistance

of counsel should be raised—if at all—in a 28 U.S.C. § 2255

(2012) motion rather than on direct appeal, unless the appellate

record conclusively demonstrates ineffective assistance.                            United

States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016).                            Because

the record here does not meet this high standard, we decline to

review these claims on direct appeal.

      Next, Tyson asserts several errors by the district court at

sentencing.             Tyson      contends             that      his      sentence     is

unconstitutional        under    the    Ex       Post    Facto    Clause     because    the

court applied FERA retroactively and applied the 2014 version of

the Guidelines instead of the 2006 version in effect at the time

his   crimes     began.         Tyson    also       asserts       several     conclusory

arguments that certain sentencing enhancements were misapplied

or need to be adjusted in light of the statute of limitations

arguments presented above.

      Because    Tyson     did    not    present          these        arguments   to   the

sentencing      court,    our    review       is    for        plain    error.      United

States v.      Olano,     507     U.S.       725,       732–33     (1993)        (providing

standard).       We conclude that Tyson has failed to show error,

much less plain error, by the district court.                          Our review of the

                                             3
record reveals no ex post facto violation, and also shows that

the sentencing enhancements were properly applied.

      Tyson    also       challenges      the      amount     of     restitution.       Our

review of the record reveals no reversible error by the district

court.        To    the    extent       that    Tyson    asserts       trial    counsel’s

ineffectiveness in disputing the restitution amount, we decline

to review such claim on direct appeal because the record does

not   conclusively          show        that       counsel     was     constitutionally

ineffective.

      Finally, Tyson contends his conviction for money laundering

conspiracy     presents         a    merger    problem       under    United   States    v.

Santos, 553 U.S. 507 (2008).                       Tyson waived this argument by

pleading guilty.           See United States v. Bundy, 392 F.3d 641, 644

(4th Cir. 2004) (“When a defendant pleads guilty, he waives all

nonjurisdictional defects in the proceedings conducted prior to

entry of the plea.”).                 To the extent Tyson asserts counsel’s

ineffectiveness in not raising this issue below, we decline to

consider the claim on direct appeal.

      Accordingly, we affirm the district court’s judgment.                             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

                                               4
