United States v. Jesus Campos

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4900

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JESUS GUTIERREZ CAMPOS, a/k/a Juan Campos, a/k/a Pelon,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony John Trenga,
District Judge. (1:09-cr-00496-AJT-2)

Submitted: June 16, 2011 Decided: June 20, 2011

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Lindsay A.
Kelly, Daniel J. Grooms, III, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jesus Gutierrez Campos pled guilty to conspiracy to

distribute cocaine and was sentenced to 121 months’

imprisonment. He appeals, arguing that the district court erred

by applying the two-level enhancement for possession of a

firearm in relation to a drug trafficking offense. He also

contends that his attorney provided ineffective assistance by

failing to argue for a below-Guidelines sentence based on his

immigration status and a consideration of the sentencing

factors. Finding no error, we affirm.

The two-level firearm enhancement applies, “unless it is

clearly improbable that the weapon was connected with the

offense.” U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) cmt.

n.3 (2009). A firearm was recovered from the bedroom of Campos’

residence. He admitted that the firearm was his. Although no

drugs were found at the residence, Campos had been seen

returning directly from drug transactions to the residence.

Based on the quantities of cocaine that Campos was selling, he

apparently stored tens of thousands of dollars in drug proceeds

at the residence. The district court did not clearly err in

determining that it was not “clearly improbable” that the

firearm was available to protect Campos and the money from theft

and the risk of violence inherent in drug dealing. See United

States v. Manigan, 592 F.3d 621, 629 (4th Cir. 2010) (upholding

2
enhancement “so long as a firearm’s location makes it readily

available to protect either the participants themselves during

the commission of the illegal activity or the drugs and cash

involved in the drug business”) (internal quotations marks

omitted); United States v. McAllister, 272 F.3d 228, 234 (4th

Cir. 2001) (providing standard).

Campos also contends that his attorney was ineffective

for failing to argue for a sentence below the advisory

Guidelines range. Ineffective assistance of counsel claims are

not cognizable on direct appeal unless the record conclusively

establishes counsel’s constitutionally inadequate performance.

United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

Because the record does not conclusively demonstrate that

Campos’ counsel was ineffective, we decline to consider this

claim on direct appeal.

Accordingly, we affirm Campos’ 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