United States v. Torres , 112 F. App'x 903 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4004
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARGARITO TORRES, a/k/a Mago,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (CR-03-265)
Submitted: September 17, 2004 Decided: November 2, 2004
Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew R. MacKenzie, BARRETT & MACKENZIE, L.L.C., Greenville, South
Carolina, for Appellant. William Kenneth Witherspoon, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Margarito Torres appeals his conviction and 120-month
sentence imposed after he pled guilty to conspiracy to distribute
and possess with intent to distribute more than 500 grams of
methamphetamine. Torres’ counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising one issue but
stating that, in his view, there are no meritorious issues for
appeal. Torres has filed a pro se supplemental brief. We affirm.
Counsel questions whether the district court erred in its
assessment of a two-point enhancement under U.S. Sentencing
Guidelines Manual § 3B1.1(c) (2002), for Torres’ role as an
organizer, leader, manager, or supervisor of a criminal activity.
Our review of the record leads us to conclude that the district
court did not plainly err in applying the enhancement. See United
States v. Osborne, 345 F.3d 281, 284 (4th Cir. 2003) (stating
standard of review).
In his pro se supplemental brief, Torres raises several
claims. First, he contends that his guilty plea was not knowing
and voluntary. Because Torres did not move in the district court
to withdraw his guilty plea, we review his challenge to the
adequacy of the Rule 11 hearing for plain error. United States v.
Martinez, 277 F.3d 517, 524-25 (4th Cir.) (providing standard of
review), cert. denied, 537 U.S. 899 (2002). We find that Torres’
guilty plea was knowingly and voluntarily entered after a thorough
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hearing pursuant to Fed. R. Crim. P. 11. Torres was properly
advised as to his rights, the offense charged, and the minimum and
maximum sentence for the offense. The court also determined that
there was an independent factual basis for the plea and that the
plea was not coerced. See North Carolina v. Alford, 400 U.S. 25,
31 (1970); United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir.
1991). We therefore find no plain error.
Torres also asserts in his pro se supplemental brief that
counsel provided ineffective assistance. However, “[i]neffective
assistance claims are not cognizable on direct appeal unless
counsel’s ineffectiveness conclusively appears on the record.”
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003), cert.
denied, 124 S. Ct. 1111 (2004). Because Torres has failed to meet
this high standard, we decline to address his ineffective
assistance of counsel claims on direct appeal.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Torres’ conviction and sentence. 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. Counsel’s motion must state that a copy thereof
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was served on the client. 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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