UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4938



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KEITH RAMSEY BARNHART,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-222)


Submitted:   July 31, 2006             Decided:     September 6, 2006


Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marshall A. Swann, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Keith Ramsey Barnhart pled guilty to possession of a

firearm during and in relation to a drug trafficking offense, 18

U.S.C. § 924(c)(1)(A)(I) (2000) (Count Two), and possession of a

firearm by a person previously convicted of a felony, 18 U.S.C.

§§ 922(g)(1), 924(a)(2) (2000) (Count Three).    The district court

sentenced Barnhart to 222 months’ imprisonment, consisting of a

102-month sentence on the § 924(c) offense, and a consecutive 120-

month term on the § 922(g) offense.

          Barnhart’s attorney filed an Anders1 brief, arguing that

Barnhart is entitled to specific performance by the Government of

its agreement to make a motion for downward departure.2      Barnhart

signed a plea agreement containing the following provisions:

          23.   When and if the defendant          assists   the
                government as described above:

                a.   The United States, in its sole
                     discretion, will determine whether
                     said    assistance     has    been
                     substantial.

                b.   Upon   a  determination  that  the
                     defendant has rendered substantial


     1
      Anders v. California, 

(1967).
     2
      Barnhart’s attorney also argues that the waiver in the plea
agreement does not preclude his appeal that the Government breached
its agreement to file a substantial assistance motion. Because the
Government has not relied on the waiver provision to assert that
appellate review is precluded, the argument raised by Barnhart’s
counsel need not be addressed. See United States v. Blick, 

, 168 (4th Cir. 2005) (citing United States v. Brock, 

, 90 n.1 (4th Cir. 2000)).

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                     assistance, the government may make
                     a   motion   pursuant  to   U.S.S.G.
                     § 5K1.1 for imposition of a sentence
                     below the applicable Sentencing
                     Guidelines. The United States may
                     also, within its sole discretion,
                     move the Court pursuant to 18 U.S.C.
                     § 3553(e) to impose a sentence below
                     any applicable statutory mandatory
                     minimum.

          24.   The defendant understands that if he . . .
                violates any federal, state, or local law, or
                any order of any court, including any
                condition of pre-trial or pre-sentence, or
                post-sentence release, the United States will
                be relieved of its obligation under this Plea
                Agreement, but the defendant will not be
                allowed to withdraw his guilty plea.

          First, we note that the plea agreement unambiguously

provides that the decision whether to file a departure motion was

within the Government’s discretion, and Barnhart does not allege

that the refusal to so move was based on an improper motive, such

as racial or religious animus.   See United States v. Butler, 

, 686-88 (4th Cir. 2001).      Moreover, after he signed the

plea agreement, Barnhart tested positive for illegal drugs, freeing

the Government from any obligation it had under the plea agreement.

Thus, the issue is without merit.

          In his pro se supplemental brief, Barnhart asserts that

his guilty plea was not voluntary because during the plea hearing,

he was led to believe his sentences for the § 922(g) offense and

the § 924(c) offense would run concurrently. As Barnhart suggests,




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the magistrate judge3 appeared to accede to counsel’s suggestion

that the sentences would be concurrent, when, by statute, the

sentence on the § 924(c) count was required to run consecutively to

any other sentence imposed.    See 18 U.S.C. § 924(c)(l)(D)(ii).4

           Because Barnhart did not object or seek to withdraw his

guilty plea on the basis of this error, this court’s review is for

plain error.    United States v. Martinez, 

, 527 (4th

Cir. 2002).     Under plain error review, this court may notice an

error that was not preserved by timely objection only if the

defendant can demonstrate that: (1) there was error; (2) it was

plain; and (3) the error affected the defendant’s substantial

rights.   United States v. Olano, 

, 732-34 (1993).       Even

when these three conditions are satisfied, this court may exercise

its discretion to notice the error only if the error “seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.”    

quotation marks omitted).

           We conclude that the error here did not rise to the level

of reversible “plain error” because it did not impact Barnhart’s

substantial    rights.   An   error   is   substantial   if   it   was   so



     3
      The plea hearing was conducted by the magistrate judge with
Barnhart’s consent. See United States v. Osborne, 

,
288 (4th Cir. 2003).
     4
      We note that in all other respects, the magistrate judge
properly advised Barnhart and informed him of the charges against
him, the rights he was foregoing by pleading guilty, and the
penalties for the offenses.

                                - 4 -
prejudicial as to affect the outcome of the proceedings.                           Id.;

.               In the guilty plea context, to prove

that an error is substantial, the defendant must show that, but for

the error, he would not have pled guilty.                   

.    Barnhart signed a plea agreement that stated with regard to

each count that the sentence would be consecutive to any other

sentence.      Both the magistrate judge and the plea agreement also

stated    that      the     maximum      penalty      for   Count    Two    was    life

imprisonment, which is far below the sentence Barnhart ultimately

received.        Any      confusion      that   may    have   resulted      from    the

misstatement in the Rule 11 hearing did not prejudice Barnhart.

              Barnhart next claims his counsel was ineffective for

failing to investigate his mental health before advising him to

plead guilty, and he states that he was taking several prescription

drugs    at   the    time    of    the    offense     and   guilty   plea    hearing.

Generally, claims of ineffective assistance of counsel are not

cognizable on direct appeal.             To allow for adequate development of

a record, a defendant must bring his claim in a 28 U.S.C. § 2255

(2000)    motion,         unless   the     record      conclusively        establishes

ineffective assistance. United States v. Richardson, 

,

198 (4th Cir. 1999); United States v. King, 

, 295 (4th

Cir. 1997).         Because the present record does not conclusively

establish ineffective assistance of counsel, Barnhart’s claim is

not cognizable on direct appeal.


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          Barnhart   also   claims   that   he   should   not   have   been

convicted of the § 924(c) offense when he did not plead guilty to

the underlying drug offense.     However, “a defendant’s conviction

under § 924(c) ‘does not depend on his being convicted--either

previously or contemporaneously--of the predicate offense, as long

as all of the elements of that offense are proved and found beyond

a reasonable doubt.’”   United States v. Hopkins, 

, 152

(4th Cir. 2002) (quoting United States v. Crump, 

, 466

(4th Cir. 1997)).    Barnhart’s guilty plea to the § 924(c) offense

constituted an admission of all material elements of the crime.

See McCarthy v. United States, 

, 466-67 (1969); United

States v. Willis, 

, 490 (4th Cir. 1993) (“A knowing,

voluntary, and intelligent guilty plea to an offense conclusively

establishes the elements of the offense and the material facts

necessary to support the conviction.”).      Thus, Barnhart has failed

to establish plain error in the taking of his plea.

          Similarly, Barnhart challenges the factual basis for his

guilty plea to Count Two.    Specifically, he argues that he did not

actively use a firearm in furtherance of drug trafficking under

Bailey v. United States, 

(1995).             Again, because

Barnhart voluntarily entered a guilty plea, his claims are waived.

.

          Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal.       Accordingly, we affirm


                                - 6 -
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 the decision process.



                                                          AFFIRMED




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