United States v. Rivera , 371 F. App'x 395 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4522
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MEYKIUM A. SIRIAS RIVERA,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00200-JAB-16)
Submitted: September 3, 2009 Decided: March 23, 2010
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Meykium A. Sirias Rivera pled guilty pursuant to a
plea agreement to one count of bulk cash smuggling, in violation
of 31 U.S.C. § 5332(a)(1) (2006). The district court sentenced
Rivera to 33 months’ imprisonment. He now appeals. Counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal.
Rivera has filed a document we construe as a pro se supplemental
brief. We affirm.
To the extent that Rivera claims that his prosecution
violated the Constitution’s prohibition against double jeopardy,
this claim is meritless. The Double Jeopardy Clause of the
Fifth Amendment protects a defendant against “a second
prosecution for the same offense after acquittal; a second
prosecution for the same offense after conviction; and multiple
punishments for the same offense.” United States v. Martin, 523
F.3d 281, 290 (4th Cir.) (internal quotation marks omitted),
cert. denied, 129 S. Ct. 238 (2008). Rivera, however, fails to
point to any cumulative punishments or successive prosecutions
in this case.
Next, Rivera suggests that the district court violated
his due process rights by imposing a sentence of imprisonment
instead of ordering that he be deported. This claim is also
without merit, as the district court had no authority to order
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Rivera’s deportation. See United States v. Xiang, 77 F.3d 771,
772-73 (4th Cir. 1996).
Finally, as to Rivera’s claim that trial counsel
rendered ineffective assistance, this claim is more
appropriately raised in a motion filed pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 2009), unless counsel’s alleged
ineffectiveness conclusively appears on the record. See United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). After
review of the record, we find no conclusive evidence that
counsel rendered ineffective assistance, and accordingly decline
to consider the claim on direct appeal.
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 Rivera, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Rivera requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
*
Our review of the transcript of the guilty plea hearing
leads us to conclude that the district court substantially
complied with the requirements of Fed. R. Crim. P. 11 in
accepting Rivera’s guilty plea and that the court’s omissions
did not affect Rivera’s substantial rights. See United States
v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Further, we
discern no abuse of discretion by the court in imposing the 33-
month sentence. See Gall v. United States, 552 U.S. 38, 41, 51
(2007).
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counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Rivera.
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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