UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6994
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ISABEL GONZALEZ, a/k/a Chabello, a/k/a Isabel
Garcia,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-00-77; CA-02-726-5-BO)
Submitted: May 10, 2004 Decided: May 26, 2004
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Isabel Gonzalez, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Isabel Gonzalez appealed from the denial of his 28 U.S.C.
§ 2255 (2000) motion. We previously granted a certificate of
appealability on the following issues: whether Gonzalez received
ineffective assistance when his attorney failed to (1) file a
requested notice of appeal and/or (2) pursue objections to drug
quantity, the leadership enhancement, or the obstruction of justice
enhancements at the sentencing hearing.
The district court dismissed these claims (along with
many others), finding that Gonzalez waived the right to file a
§ 2255 motion in his plea agreement. However, the plea agreement
explicitly reserved the right to challenge “ineffective assistance
or prosecutorial misconduct not known to [Gonzalez] at the time of
[Gonzalez’s] guilty plea.” The claims above fall into this
category, as they concern actions or inactions by counsel after
Gonzalez’s guilty plea. In addition, Gonzalez has stated colorable
claims that cannot be decided summarily on the current record.
Thus, with the exception of the claim regarding the
leadership enhancement which has been waived on appeal,* we vacate
*
In his informal brief, Gonzalez contends that his attorney
told him that he was not pleading guilty as a leader or organizer
of the conspiracy, despite the fact that the indictment described
him as occupying a leadership role. Because Gonzalez should have
been aware of the contents of the indictment at the time of his
guilty plea (and he does not claim otherwise), this issue was
waived in his plea agreement. Moreover, the certificate of
appealability was granted on Gonzalez’s claim that his attorney
withdrew her objection to the leadership enhancement attributed to
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the district court’s dismissal of the claims described above and
remand so that the district court can consider the merits of the
claims in the first instance. We affirm the district court’s
dismissal of Gonzalez’s claim that his attorney improperly failed
to object to the leadership enhancement at sentencing. 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 IN PART;
VACATED AND REMANDED IN PART
him in his presentence report. This claim has now also been waived
by Gonzalez’s failure to address it in his informal brief. See 4th
Cir. R. 34(b).
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