United States v. Zepeda-Olivas , 7 F. App'x 286 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4363
JOSE ANTONIO ZEPEDA-OLIVAS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-99-17)
Submitted: March 30, 2001
Decided: April 23, 2001
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John McLeod Tutterow, Asheville, North Carolina, for Appellant.
Brian Lee Whisler, OFFICE OF THE UNITED STATES ATTOR-
NEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ZEPEDA-OLIVAS
OPINION
PER CURIAM:
Jose Antonio Zepeda-Olivas appeals his sentence for unauthorized
reentry of a deported alien in violation of 8 U.S.C.A. § 1326(a) (West
1999). Zepeda-Olivas’ attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), asserting ineffective assis-
tance of counsel, but stating that, in his view, there are no meritorious
grounds for appeal. Zepeda-Olivas has filed a pro se supplemental
brief augmenting his attorney’s ineffective assistance claim and
asserting the district court was incorrect in treating his prior aggra-
vated felony conviction as a sentencing factor rather than an element
of the offense. Finding no reversible error, we affirm.
Zepeda-Olivas first contends he received ineffective assistance of
counsel in the district court that resulted in an improper sentence.
Claims of ineffective assistance of counsel are generally not cogniza-
ble on direct appeal. See United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Rather, to allow for adequate development of the record,
the presumptive rule is that ineffective assistance of counsel claims
must be pursued under 28 U.S.C.A. § 2255 (West Supp. 2000). See
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An excep-
tion exists when the record conclusively establishes ineffective assis-
tance. See King, 119 F.3d at 295. Because review of the record in this
appeal does not conclusively establish ineffective assistance of coun-
sel, we conclude Zepeda-Olivas’ claim must be brought, if at all, in
a § 2255 proceeding, not on direct appeal.
In his pro se supplemental brief, Zepeda-Olivas also claims the
Government was required to treat his prior felony conviction as an
element of the offense rather than a sentencing factor. Because the
Supreme Court has held that § 1326(b)(2) sets forth a sentencing fac-
tor rather than an element of the offense, this claim is without merit.
See Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Contrary to Zepeda-Olivas’ assertions, we find that this case was not
overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000). See
United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir. 2001);
United States v. Thomas, ___ F.3d ___, 2001 WL 178506, at *5 (11th
Cir. Feb. 23, 2001) (No. 99-12367); United States v. Terry, 240 F.3d
UNITED STATES v. ZEPEDA-OLIVAS 3
65, 73-74 (1st Cir. 2001); United States v. Pacheco-Zepeda, 234 F.3d
411, 414 (9th Cir. 2000), petition for cert. filed, ___ U.S.L.W. ___
(U.S. Mar. 5, 2001) (No. 00-8814); United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001); United
States v. Gatewood, 230 F.3d 186, 192 (6th Cir. 2000) (en banc); see
also Columbia Union Coll. v. Clarke, 159 F.3d 151, 158 (4th Cir.
1998) (stating that lower courts should not presume the Supreme
Court has overruled one of its cases by implication; courts must fol-
low case law that directly controls unless clearly overruled by subse-
quent Supreme Court case), cert. denied, 527 U.S. 1013 (1999).
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
Zepeda-Olivas’ sentence for unauthorized reentry of a deported alien.
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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED