UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4749
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEROMINO MORALES LOPEZ,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00078-LHT-1)
Submitted: September 3, 2009 Decided: September 22, 2009
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, P.A., Asheville, North
Carolina, for Appellant. Edward R. Ryan, Acting United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeromino Morales Lopez pled guilty pursuant to a plea
agreement to one count of possession with the intent to
distribute 50 grams or more of methamphetamine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A) (2006). The district court
sentenced him to a within-Guidelines sentence of 80 months’
imprisonment. On appeal, Lopez asserts that trial counsel
rendered ineffective assistance by failing to move for a
downward departure from the Guidelines range on account of his
status as an alien or to present evidence of the consequences
his alien status would have on his incarceration. We conclude
these claims are not cognizable on direct appeal and affirm.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King,
119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant must ordinarily
bring such claims in a 28 U.S.C.A. § 2255 (West Supp. 2009)
motion. See id.; United States v. Hoyle, 33 F.3d 415, 418
(4th Cir. 1994). An exception exists where the record
conclusively establishes ineffective assistance. United States
v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
To succeed on a claim of ineffective assistance of
counsel, Lopez must show that counsel’s performance fell below
an objective standard of reasonableness and was prejudicial.
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Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984).
Under the first Strickland prong, Lopez must demonstrate that
counsel’s performance fell below an objective standard of
reasonableness under “prevailing professional norms.” Id. at
688. A reviewing court cannot engage in hindsight; rather, the
reasonableness of counsel’s performance is evaluated within the
context of the circumstances at the time of the alleged error.
Id. at 690. To satisfy the second Strickland prong, Lopez must
demonstrate that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Courts may bypass the
performance prong and proceed directly to the prejudice prong
when it is easier to dispose of the case for lack of prejudice.
See id. at 697.
We conclude that the record does not conclusively
establish counsel’s ineffectiveness. Even assuming that it was
error for counsel to fail to move for a downward departure or
present evidence of the consequences Lopez’ alien status would
have on his incarceration, Lopez fails to point to any evidence
in the record suggesting that the district court would have
sentenced him to a shorter prison term had counsel so advocated,
and we find none apparent on this record. We therefore affirm
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the district court’s judgment. 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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