UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4424
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR ALVAREZ GUTIERREZ, a/k/a Cochiloco,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00317-NCT-3)
Submitted: June 18, 2014 Decided: June 27, 2014
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
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Unpublished opinions are not binding precedent in this circuit.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:
Hector Alvarez Gutierrez pled guilty, pursuant to a
written plea agreement, to conspiracy to distribute more than
100 kilograms of marijuana, in violation of 21 U.S.C. § 846
(2012). The district court sentenced Gutierrez to sixty-six
months’ imprisonment. On appeal, Gutierrez’s counsel has
submitted a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying that there are no meritorious grounds for
appeal. Gutierrez filed a pro se supplemental brief alleging
numerous claims of ineffective assistance of counsel. We
affirm.
Because Gutierrez did not move in the district court
to withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002); see Henderson v. United States, 133 S.
Ct. 1121, 1126-27 (2013) (discussing standard of review).
Although the district court neglected to inform Gutierrez of its
power to order asset forfeiture, we conclude that the court’s
minor omission did not affect Gutierrez’s substantial rights.
See United States v. Massenburg, 564 F.3d 337, 343 (4th Cir.
2009). Moreover, the district court ensured that Gutierrez’s
plea was knowing and voluntary and that a factual basis
supported the plea. Accordingly, we conclude that the district
court substantially complied with Rule 11.
2
We review a sentence for reasonableness, applying “an
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007). In so doing, we examine the sentence for
“significant procedural error.” Id. If there is none, we
“consider the substantive reasonableness of the sentence . . . ,
tak[ing] into account the totality of the circumstances.” Id.
After a thorough review of the sentencing proceedings, we
conclude that Gutierrez’s sentence is procedurally reasonable
and that his within-Guidelines sentence is entitled to the
presumption of reasonableness. See United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (explaining
presumption of reasonableness).
Lastly, turning to Gutierrez’s claims of ineffective
assistance of counsel, such claims “are generally not cognizable
on direct appeal.” United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008); see United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). Instead, to allow for adequate development of
the record, a defendant must ordinarily bring his claims in a 28
U.S.C. § 2255 (2012) motion. King, 119 F.3d at 295. However,
we may entertain such claims on direct appeal only if “it
conclusively appears from the record that defense counsel did
not provide effective representation.” United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). See generally
Strickland v. Washington, 466 U.S. 668, 687 (1984) (setting
3
forth standard). Because none of Gutierrez’s alleged
ineffective assistance of counsel claims conclusively appears on
the record, we decline to address them in this appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious grounds for appeal.
We therefore affirm the district court’s judgment and deny
counsel’s pending motion to withdraw. This court requires that
counsel inform Gutierrez, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Gutierrez requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Gutierrez. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
4