Vacated by Supreme Court, March 21, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4883
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE BRETON-PICHARDO, a/k/a Rolando Berberena,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, Chief
District Judge. (CR-03-6)
Submitted: September 17, 2004 Decided: November 30, 2004
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR, VICTOR & HELGOE, L.L.P., Charleston, West
Virginia, for Appellant. William Frederick Gould, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Breton-Pichardo pled guilty to conspiracy to possess
with intent to distribute less than fifty grams of cocaine base, in
violation of 21 U.S.C. § 846 (2000). The district court sentenced
Breton-Pichardo to 262 months of imprisonment followed by eight
years of supervised release. Breton-Pichardo appeals his
conviction and sentence. Counsel has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that, in
his view, there are no meritorious grounds for appeal. Finding no
error, we affirm.*
Counsel first questions whether trial counsel provided
ineffective assistance of counsel by failing properly to advise
Breton-Pichardo of the application of the sentencing guidelines
regarding career offender status. Claims of ineffective assistance
generally are not cognizable on direct appeal, but should be
asserted on collateral review. Only if ineffective assistance is
conclusively established on the face of the record should such
claims be entertained on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Because ineffective assistance is
*
Counsel for Breton-Pichardo has filed a motion seeking
permission to provide supplemental argument to challenge the
sentence under Blakely v. Washington, 124 S. Ct. 2531 (2004). We
grant the motion and construe the motion as the supplemental brief
attacking the sentence under Blakely. In light of the opinion
issued by the en banc court in United States v. Hammoud, __ F.3d
___, 2004 WL 2005622 (4th Cir. Sept. 8, 2004) (No. 03-4253),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. Aug. 6, 2004) (No.
04-193), we find no Blakely error in Breton-Pichardo’s sentence.
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not conclusively shown on the face of the record, Breton-Pichardo
must assert his claim on collateral review.
Next, counsel raises as a potential issue that trial
counsel was ineffective because he failed to argue that the career
offender provision in the presentence report’s offense level
computation overstated Breton-Pichardo’s criminal history.
However, ineffective assistance is not conclusively shown on the
face of the record in this regard either; therefore, Breton-
Pichardo’s claim should be asserted on collateral review.
As required by Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Breton-Pichardo's 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 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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