United States v. Ovalle ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4435
JUAN BEDIOS OVALLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-01-130)
Submitted: January 14, 2003
Decided: February 4, 2003
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville,
North Carolina, for Appellant. Winnie Jordan Reaves, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. OVALLE
OPINION
PER CURIAM:
Juan Bedios Ovalle appeals his conviction and sentences of consec-
utive terms of eighty-seven and sixty months’ imprisonment after his
guilty plea to conspiracy to distribute and to possess with intent to
distribute at least 500 grams of cocaine and at least five grams of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000), and
possession of a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (2000). Ovalle’s
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), arguing that Ovalle may have received ineffective assistance
of counsel, but stating that, in his opinion, there were no meritorious
issues. Ovalle has filed a document we have construed as a pro se
supplemental brief alleging he received ineffective assistance of coun-
sel and that he was charged for a gun he did not possess.
Ovalle asserts counsel provided ineffective assistance by failing to
obtain a sentencing adjustment based upon Ovalle’s mitigating role in
the offense. Claims of ineffective assistance of counsel are generally
not cognizable on direct appeal unless the record conclusively estab-
lishes ineffective assistance of counsel. See United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). To allow for adequate development of
the record, ineffective assistance of counsel claims should be pursued
in a 28 U.S.C. § 2255 (2000) motion. United States v. Hoyle, 33 F.3d
415, 418 (4th Cir. 1994). Because the record on appeal does not con-
clusively establish ineffective assistance of counsel, we conclude
Ovalle’s claim should be asserted, if at all, in a § 2255 proceeding,
not on direct appeal. We reject Ovalle’s pro se ineffective assistance
of counsel claims on the same grounds.
Ovalle argues the Government improperly charged him for a gun
he never possessed. Because Ovalle was charged, and pled guilty to,
aiding and abetting possession of the firearm, we reject this claim. See
United States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998) ("A defen-
dant may be convicted of a § 924(c) charge on the basis of a cocon-
spirator’s use of a gun if the use was in furtherance of the conspiracy
and was reasonably foreseeable to the defendant.").
UNITED STATES v. OVALLE 3
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm.
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