UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5117
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WEILY L. BOKEL, a/k/a Weily Liu,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (CR-04-70018)
Submitted: May 19, 2006 Decided: June 12, 2006
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mark W. Claytor, Salem, Virginia, for Appellant. John L. Brownlee,
United States Attorney, Craig J. Jacobsen, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Weily Bokel appeals the thirty-three month sentence she
received after she was convicted by a jury of attempted
international parental kidnapping, 18 U.S.C.A. § 1204 (West 2000 &
Supp. 2005). She asserts that the district court plainly erred
under United States v. Booker, 543 U.S. 220 (2005), and United
States v. Hughes, 401 F.3d 540 (4th Cir. 2005), in making a two-
level adjustment for obstruction of justice, see U.S. Sentencing
Guidelines Manual § 3C1.1 (2004), based on her perjured trial
testimony. The government concedes error under Booker. For the
reasons explained below, we vacate the sentence and remand for
resentencing. We grant Bokel’s motion to file a pro se
supplemental brief, but conclude that her claims of ineffective
assistance are not properly raised on direct appeal.
The district court determined at the sentencing hearing,
over Bokel’s objection, that she had obstructed justice by giving
perjured testimony at trial. With the adjustment for obstruction
of justice, Bokel’s guideline range was 27-33 months. The court
imposed a sentence of thirty-three months imprisonment. We agree
with Bokel and the government that Bokel’s sentence violated the
Sixth Amendment under Booker. Based only on the facts found by the
jury and without the two-level adjustment for obstruction of
justice found applicable by the court over her objection, Bokel’s
offense level would have been 16. Because she was in criminal
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history category I, her guideline range would have been 21-27
months. Bokel’s sentence of thirty-three months thus exceeded the
maximum sentence permissible based on facts found by the jury. We
conclude that Bokel has demonstrated plain error that warrants
correction. See Hughes, 401 F.3d at 555-56.
Bokel has submitted a pro se supplemental brief in which
she claims that her appointed attorney’s assistance has been
ineffective in several respects and that the district court erred
in refusing to appoint new counsel. To succeed in a claim of
ineffective assistance on direct appeal, a defendant must show
conclusively from the face of the record that counsel provided
ineffective representation. United States v. James, 337 F.3d 387,
391 (4th Cir. 2003); see also United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999) (providing standard and noting that
ineffective assistance of counsel claims generally should be raised
by motion under 28 U.S.C. § 2255 (2000)). Here, the record does
not conclusively demonstrate that Bokel’s counsel was ineffective.
Therefore, her claims are not properly raised on direct appeal.
Accordingly, we vacate the sentence imposed by the
district court and remand for resentencing consistent with Booker.
We grant Bokel’s motion to file a pro se supplemental brief. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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