UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4282
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JORGE E. PARRA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-98-1)
Submitted: September 29, 2004 Decided: November 2, 2004
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
David S. Zapp, New York, New York, for Appellant. G. Wingate
Grant, II, Assistant United States Attorney, Matthew G. Howells,
Third-Year Law Student, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In 1998, Jorge E. Parra pled guilty pursuant to a plea
agreement to conspiracy to distribute heroin, in violation of 21
U.S.C. § 846 (2000), and obstruction of justice, in violation of 18
U.S.C. § 1503 (2000). Parra received concurrent 120-month
sentences, to be followed by five years of supervised release. No
appeal was noted from the conviction or sentence.
In a 28 U.S.C. § 2255 (2000) motion filed in the district
court, Parra asserted that trial counsel was ineffective on two
grounds. The court dismissed one ground as lacking merit. In the
second ground, Parra complained that counsel failed to note an
appeal despite Parra’s instructions to do so. The district court
dismissed this claim on the ground that, as Parra waived his right
to appeal the sentence, counsel’s failure to note an appeal even if
requested to do so did not constitute ineffective assistance of
counsel.
On appeal, we affirmed the district court’s holding on
the first claim. As to the failure to note an appeal, we
determined that the waiver was not so broad that it covered every
claim that might be raised. Therefore, we remanded with directions
to the district court to “determine the facts necessary to assess
counsel’s conduct” under Roe v. Flores-Ortega, 528 U.S. 470 (2000).
United States v. Parra, No. 00-6824, 2000 WL 1714181 (4th Cir.
Nov. 16, 2000) (unpublished).
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On remand, the Government acknowledged sufficient
evidence to establish that Parra directed his former counsel to
appeal, but counsel failed to do so. The district court therefore
authorized Parra, within ten days of its order, to note an appeal.
Months later, Parra moved for reconsideration of the
order on the ground that neither he nor counsel received notice of
the order in time to appeal. In addition, Parra argued that
circuit precedent required the district court to vacate the
judgment of conviction and resentence him in order to begin the
appeal period. Parra asked the court, in resentencing him, to
reconsider his eligibility for a safety valve reduction under U.S.
Sentencing Guidelines Manual § 5C1.2 (1997).
After a hearing on the motion, the district court vacated
the original judgment of conviction and sentence and reentered the
same order on April 8, 2004. The court declined Parra’s request to
reconsider him for a safety valve reduction under USSG § 5C1.2.
Parra noted a timely appeal.
On appeal, Parra asserts that the district court should
have allowed him to proffer under USSG § 5C1.2 prior to
resentencing. He claims as well that his first counsel rendered
constitutionally ineffective assistance in failing to prepare him
for his safety valve proffer to the Government. We conclude that
the district court did not err in finding authority only to vacate
and reenter judgment, rather than to resentence Parra de novo.
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“[T]he ‘standard practice among federal courts’ in this situation
[is] vacatur of the sentence and summary imposition of a new
sentencing judgment identical in all respects to the earlier one
except for the date of entry.” United States v. Torres-Otero, 232
F.3d 24, 29 (1st Cir. 2000) (quoting Pratt v. United States, 129
F.3d 54, 62 (1st Cir. 1997)). This court has followed the same
procedure. United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993)
(in § 2255 appeal where criminal defense attorney failed to file a
notice of appeal though requested to do so, court reversed and
remanded with instruction to “vacate Peak’s judgment of conviction
and enter a new judgment from which an appeal can be taken.”).
Parra next contends that his initial counsel rendered
constitutionally ineffective assistance. “Ineffective 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). Here, Parra asserts that his original
trial counsel was ineffective in preparing him for the safety valve
proffer. However, there is no evidence in the record before the
court to support that claim. General comments by the district
court about counsel’s overall performance at court proceedings are
not sufficient on their face and standing virtually alone to
satisfy the standard set forth in Strickland v. Washington, 466
U.S. 668, 688, 694 (1984). Therefore, this claim may not be
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pursued on direct appeal, though Parra may raise it in a timely
motion to vacate his sentence, 28 U.S.C. § 2255.
We affirm Parra’s judgment and conviction. 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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