                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4704


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TYREE TEKO SMITH,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cr-01206-DCN-1)


Submitted:    June 24, 2009                 Decided:   July 16, 2009


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kirsten E. Small, NEXSEN PRUET, LLC, Greenville, South Carolina,
for Appellant. Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Tyree Teko Smith was convicted following a jury trial

and sentenced to 481 months’ total imprisonment on two counts of

possessing    with    intent       to    distribute   five    grams    or    more    of

cocaine base, in violation of 21 U.S.C. §§ 841(a), (b)(1)(b)

(2006), two counts of using or carrying a firearm during and in

relation to, or possessing a firearm in furtherance of, a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)

(2006),   and      one   count      of     possessing     a     firearm      with    an

obliterated serial number, in violation of 18 U.S.C. § 922(k)

(2006).   Smith’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), raising several issues, but

concluding that no meritorious issues for appeal exist.                         Smith

was advised of his right to file a pro se supplemental brief,

and, while he expressly declined to do so, he nonetheless has

claimed ineffective assistance of counsel.

           By      counsel,      Smith      first     challenges       his    arrest,

claiming the officers lacked probable cause to arrest him and

seize incriminating evidence from his person incident to his

arrest.   Smith’s actions and communications with an individual

present   with     him   at    a    previously-arranged         drug    transaction

between the other individual and a confidential informant, which

actions      and      communications           were     being      observed         and

electronically       monitored      by    officers,    clearly     provided     ample

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probable cause for the arrest and seizure of the evidence at

issue.       See Michigan v. DeFillippo, 443 U.S. 31, 37 (1979);

Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998).

              Second, we find no merit to Smith's conclusory claim

that   the    district    judge’s       consideration     of    certain   DVDs    at

sentencing was improper.            Hearsay is allowable at sentencing,

see United States v. Love, 134 F.3d 595, 607 (4th Cir. 1998),

and there is no evidence whatsoever that the district judge was

improperly influenced by the DVDs such that the evidence was

unfairly prejudicial to Smith.

             Smith next claims his sentence is unreasonable.                     Our

review of the record reveals that the district court followed

the necessary procedural steps and substantive requirements in

sentencing Smith, and properly calculated the guidelines range

and considered that recommendation in conjunction with the 18

U.S.C.    § 3553(a)      (2006)   factors.         Smith’s     within   guidelines

sentence     is   entitled   to     a    presumption     of    reasonableness     on

appeal, see United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008); see also Rita v. United States, 551 U.S. 338, ___, 127 S.

Ct. 2456, 2462-69 (2007), and we find no abuse of the district

court’s discretion in its imposition of Smith’s sentence.                        See

Gall v. United States, 128 S. Ct. 586, 597 (2007).

             Smith’s assertion that he should not be subject to the

25-year      statutory    minimum       sentence   for   a     second   conviction

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returned in the same proceeding is foreclosed by Deal v. United

States, 508 U.S. 129, 137 (1993), and we decline his request to

overturn our prior decision in United States v. Studifin, 240

F.3d 415, 420-24 (4th Cir. 2001), even if it were applicable to

his case, which it is not.

              Finally,        Smith’s   general          claims       of     ineffective

assistance      are   not      conclusively        established        on   the     record.

Thus, such claims are not cognizable on direct appeal.                                 See

United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).

              We have reviewed the record in accordance with Anders

and affirm Smith’s conviction and sentence.                           We deny Smith’s

motion   to    remove    counsel.       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

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 presented in the materials

before   the    court    and     argument        would   not    aid    the   decisional

process.

                                                                                  AFFIRMED



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