UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4006
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER RAY PARRISH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00099-FL-1)
Submitted: December 9, 2009 Decided: January 13, 2010
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Ray Parrish appeals the sentence imposed
after he pled guilty, pursuant to a plea agreement, to
possession with intent to distribute marijuana, in violation of
21 U.S.C. § 841(a)(1) (2006), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2006). On appeal, Parrish argues that trial
counsel provided ineffective assistance by failing to object to
the probation officer’s recommendation that he qualified for
sentencing as a career offender. The Government has moved to
dismiss the appeal on the ground that claims of ineffective
assistance of counsel are not cognizable on direct appeal. We
deny the Government’s motion to dismiss but affirm Parrish’s
sentence.
In the presentence report, the probation officer
concluded that Parrish qualified for sentencing as a career
offender based on two prior North Carolina state court
convictions: possession with intent to manufacture, sell and
deliver marijuana; and possession with intent to manufacture,
sell and deliver marijuana and cocaine. Parrish did not contest
his status as a career offender, but requested a downward
variance based on an argument that the sentencing range over-
represented the seriousness of his prior crimes. The district
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court denied the motion and sentenced Parrish to 262 months of
imprisonment.
Parrish argues that counsel should have objected to
his career offender status on the ground that he did not have
the required predicate felony convictions for career offender
sentencing, because his prior state drug convictions were not
punishable by more than one year of imprisonment. He bases this
argument on the Supreme Court’s decision in United States v.
Rodriquez, 553 U.S. 377 (2008). He also relies on United States
v. Pruitt, 545 F.3d 416 (6th Cir. 2008), which interpreted the
North Carolina sentencing statutes to require an examination of
each defendant’s prior record level to determine if a particular
crime was punishable by more than one year of imprisonment. The
Government argues in its motion to dismiss that the objection
Parrish asserts trial counsel should have raised was foreclosed
by binding precedent, specifically this court’s decision in
United States v. Harp, 406 F.3d 242 (4th Cir. 2005).
The Government correctly notes that claims of
ineffective assistance of counsel are generally 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 bring his claim 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 when the
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record conclusively establishes ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King,
119 F.3d at 295. Our review of the record leads us to conclude
that it fails to establish that counsel was ineffective. We
decline, however, to dismiss the appeal, as the policy regarding
claims of ineffective assistance of counsel asserted on direct
appeal is not jurisdictional, and dismissing the appeal would
not promote judicial efficiency.
Accordingly, although we deny the Government’s motion
to dismiss the appeal, we affirm Parrish’s sentence. 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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