UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4754
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CESAR CAICEDO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cr-00354-JAB)
Submitted: November 20, 2007 Decided: November 28, 2007
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. James Payne, POWELL & PAYNE, Shallotte, North Carolina, for
Appellant. Sandra Jane Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cesar Caicedo appeals from his conviction and 60-month
sentence imposed following his guilty plea to conspiracy to
distribute cocaine. Caicedo’s attorney filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising the issues
requested by Caicedo, but stating that there was no merit to the
appeal. Caicedo filed a pro se brief asserting that the search
that uncovered the cocaine was unlawful, there was insufficient
evidence to support his conviction, the plea agreement was invalid,
and counsel was ineffective. Our review of the record discloses no
reversible error; accordingly, we affirm Caicedo’s conviction and
sentence.
We find that Caicedo’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11, during which Caicedo was assisted by an interpreter.
Caicedo was properly advised of his rights, the offense charged,
and the mandatory minimum and maximum sentences for the offense.
The court also determined that there was an independent factual
basis for the plea and that the plea was not coerced or influenced
by any promises. See United States v. DeFusco, 949 F.2d 114, 119-
20 (4th Cir. 1991). Because Caicedo knowingly and voluntarily pled
guilty, he cannot now challenge the validity of the consensual
search of the vehicle in which the cocaine was discovered. See
Tollett v. Henderson, 411 U.S. 258, 267 (1973) (defendant who
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enters guilty plea waives right to raise constitutional challenge
to conviction); United States v. Willis, 992 F.2d 489, 490 (4th
Cir. 1993).
Caicedo argues that counsel was ineffective for failing
to investigate, failing to move to suppress the evidence, and for
advising him to plea guilty. Claims of ineffective assistance of
trial counsel are not cognizable on direct appeal unless such
ineffectiveness conclusively appears from the record. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, such
claims should be raised, if at all, in a proceeding under 28 U.S.C.
§ 2255 (2000). Because the record does not conclusively establish
that counsel provided ineffective assistance, we decline to
consider the merits of this issue on direct appeal.
We find that the district court properly applied the
Sentencing Guidelines and considered the relevant sentencing
factors before imposing the 60-month sentence. 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007); see United States v. Hughes,
401 F.3d 540, 546-47 (4th Cir. 2005). Additionally, we find that
the sentence imposed—which was within the properly calculated
guideline range—was reasonable. See United States v. Green, 436
F.3d 449, 457 (4th Cir.) (“[A] sentence imposed within the properly
calculated [g]uidelines range . . . is presumptively reasonable.”)
(internal quotation marks and citation omitted), cert. denied, 126
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S. Ct. 2309 (2006); see also Rita v. United States, 127 S. Ct.
2456, 2462-69 (2007) (upholding application of rebuttable
presumption of correctness of within guideline sentence).
Accordingly, we affirm Caicedo’s sentence.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Caicedo’s conviction and sentence. Counsel’s motion to
withdraw as counsel is denied at this time. 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
renew his motion 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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