UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4218

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERRY HOLLINGSWORTH, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, Chief District Judge. (1:17-cr-00236-TDS-1)

Submitted: September 18, 2018 Decided: September 20, 2018

Before WILKINSON and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Kelley Patricia Kennedy Gates, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jerry Hollingsworth, Jr., pleaded guilty to interference with commerce by robbery,

in violation of

(a) (2012), and received a 151-month sentence. Counsel

has filed an Anders v. California,

(1967) brief, finding no meritorious

issues, but questioning whether Hollingsworth was properly sentenced as a career

offender. Counsel acknowledges that the issue is foreclosed by United States v. Gattis,

(4th Cir. 2017) (holding that North Carolina common law robbery

constitutes “robbery” as enumerated in post-August 2016 amended version of USSG

§ 4B1.2(a)(2)), cert. denied,

(2018). Hollingsworth has filed a pro se

supplemental brief alleging ineffective assistance of counsel because counsel did not

fully inform him of the potential effect of Gattis prior to the Fed. R. Crim. P. 11 hearing.

The Government declined to file a brief. Finding no error, we affirm.

We review a sentence for reasonableness, applying an abuse of discretion

standard. Gall v. United States,

(2007). We first review for significant

procedural errors, including whether the district court failed to calculate or improperly

calculated the Sentencing Guidelines range, treated the Guidelines as mandatory, failed to

consider the

(a) (2012) factors, or failed to adequately explain its chosen

sentence.

If we find the sentence procedurally reasonable, we then examine

substantive reasonableness, considering the totality of the circumstances. Gall,

. If the sentence is within the Guidelines range, we apply a presumption of

reasonableness. United States v. Louthian,

(4th Cir. 2014).

2 Hollingsworth’s counsel found no fault in the calculation of the Sentencing

Guidelines range and the sentence imposed. He pointed the court to Hollingsworth’s

objection to application of the career offender enhancement based in part on his North

Carolina conviction for common law robbery. Counsel concedes that the challenge is not

meritorious in light of Gattis,

. We find no procedural error and

conclude that Hollingsworth’s sentence is also substantively reasonable. Hollingsworth

presents no evidence to rebut the presumption of reasonableness applicable to his

within-Guidelines sentence.

In his pro se supplemental brief, Hollingsworth alleges ineffective assistance of

counsel related to counsel’s alleged failure to properly inform Hollingsworth of the

impact of the Gattis decision. This court does not address claims of ineffective assistance

of counsel on direct appeal “[u]nless an attorney’s ineffectiveness conclusively appears

on the face of the record.” United States v. Faulls,

(4th Cir. 2016). To

succeed on an ineffective assistance of counsel claim, a defendant “must show that

counsel’s performance was deficient” and “that the deficient performance prejudiced the

defense.” Strickland v. Washington,

(1984). Because nothing in the

record conclusively shows that counsel was ineffective, Hollingsworth’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. We therefore affirm Hollingsworth’s

conviction and sentence. This court requires that counsel inform Hollingsworth, in

writing, of the right to petition the Supreme Court of the United States for further review.

3 If Hollingsworth 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

Hollingsworth.

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

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