United States v. Claro Gonzalez , 482 F. App'x 846 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLARO GUTIERREZ GONZALEZ, a/k/a Sotero Cabrera Estrada,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00206-FL-2)
Submitted: September 25, 2012 Decided: October 5, 2012
Before AGEE, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Claro Gutierrez Gonzalez pleaded guilty, pursuant to a
plea agreement, to possession with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006), and 18 U.S.C. § 2 (2006), and unlawfully reentering the
United States after removal as an aggravated felon, in violation
of 8 U.S.C. § 1326(a), (b)(2) (2006). The district court
sentenced Gonzalez to seventy-eight months in prison. On
appeal, counsel for Gonzalez filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal but questioning the effectiveness
of defense counsel’s assistance in permitting Gonzalez to enter
his guilty plea. Gonzalez filed a pro se supplemental brief
repeating the claim raised by counsel and complaining that trial
counsel failed to provide copies of transcripts, to object to
the presentence report, to seek a downward adjustment for his
role in the offense, or to seek a departure based on the
disparity between sentencing in fast-track ∗ and non-fast-track
jurisdictions. We affirm.
∗
The fast-track program allows federal prosecutors to offer
shorter sentences to defendants who plead guilty at an early
stage in the prosecution and agree to waive appeal and other
rights. See U.S. Sentencing Guidelines Manual § 5K3.1, p.s.
(2011).
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Although Gonzalez asserts that counsel allowed him to
enter an involuntary guilty plea, our review of the record leads
us to conclude Gonzalez’s plea was knowing and voluntary and
supported by an adequate factual basis. Thus, the record does
not conclusively establish any deficient performance of counsel
in this regard. See United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008) (providing standard); United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Nor does the
record conclusively establish counsel’s ineffectiveness with
regard to the claims raised in Gonzalez’s pro se brief. We
therefore conclude none of the ineffective assistance claims is
cognizable on direct appeal. Rather, to permit adequate
development of the record, Gonzales must pursue such claims, if
at all, in an appropriate proceeding for post-conviction relief.
United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.
2010).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Gonzalez, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Gonzalez 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
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representation. Counsel’s motion must state that a copy thereof
was served on Gonzalez.
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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