United States v. Damasio Arreola , 451 F. App'x 313 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4395
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMASIO ARREOLA, a/k/a Damasco, a/k/a Ramazon,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00590-CMC-2)
Submitted: October 18, 2011 Decided: October 20, 2011
Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South
Carolina, for Appellant. Mark C. Moore, Stanley Duane Ragsdale,
Assistant United States Attorneys, James Chris Leventis, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damasio Arreola pled guilty to conspiracy to possess
with intent to distribute and to distribute five kilograms or
more of cocaine, fifty grams or more of cocaine base, and a
quantity of marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), (b)(1)(D), 846 (2006). He received the statutorily-
mandated minimum of 120 months’ imprisonment. On appeal,
Arreola’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating his opinion that there
are no meritorious issues for appeal, but questioning whether
the district court erred in finding that Arreola did not meet
the requirements for the safety valve reduction. Arreola has
filed a pro se supplemental brief alleging counsel was
ineffective in failing to move for a continuance at sentencing
based on Arreola’s willingness to be interviewed by the
Government. The Government has declined to file a responsive
brief. We affirm.
A district court’s determination of whether a
defendant has satisfied the safety valve criteria is a question
of fact reviewed for clear error. United States v. Wilson, 114
F.3d 429, 432 (4th Cir. 1997). This deferential standard of
review permits reversal only if this court is “‘left with the
definite and firm conviction that a mistake has been
committed.’” United States v. Stevenson, 396 F.3d 538, 542 (4th
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Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573
(1985)).
To qualify for the safety valve provision, the
defendant must establish the existence of five prerequisites.
18 U.S.C. § 3553(f) (2006); U.S. Sentencing Guidelines Manual
§ 5C1.2 (2008). The burden is on the defendant to prove that
all five safety valve requirements have been met. United States
v. Beltran–Ortiz, 91 F.3d 665, 669 (4th Cir. 1996). Our review
of the record leads us to conclude that the district court’s
finding that Arreola did not qualify for the safety valve
provision because he did not fully cooperate with the Government
is not clearly erroneous.
To the extent Arreola claims in his pro se brief that
counsel was ineffective at sentencing for failing to request a
continuance based on Arreola’s willingness to be interviewed,
claims of ineffective assistance of counsel are not cognizable
on direct appeal unless the record conclusively establishes
ineffective assistance. See United States v. Baldovinos, 434
F.3d 233, 239 (4th Cir. 2006); United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999). Rather, to allow for adequate
development of the record, claims of ineffective assistance
generally should be brought in a 28 U.S.C.A. § 2255 (West Supp.
2011) motion. United States v.. Hoyle, 33 F.3d 415, 418 (4th
Cir. 1994). We have reviewed the transcript of Arreola’s
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sentencing hearing and conclude that Arreola has failed to meet
the demanding burden of showing ineffective assistance of
counsel on direct appeal. Accordingly, we reject this claim.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. This court requires that counsel inform Arreola, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Arreola 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 Arreola. 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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