UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK RONALD SILVA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:14-cr-00026-MR-DLH-1)
Submitted: February 29, 2016 Decided: April 6, 2016
Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Ronald Silva pleaded guilty, pursuant to a plea
agreement, to coercing a minor to produce child pornography, in
violation of 18 U.S.C. § 2251(a) (2012). He was sentenced to
262 months’ imprisonment. On appeal, Silva argues that trial
counsel was ineffective at sentencing in failing to present
certain arguments or in failing to file a motion for a downward
variance or departure.
Silva pled guilty pursuant to a written plea agreement,
wherein he waived his appellate rights except for claims of
ineffective assistance of counsel and prosecutorial misconduct.
Silva has not challenged the validity of the waiver nor has the
Government sought to enforce the waiver. Accordingly, Silva’s
ineffective assistance of counsel claim is reviewable by this
court.
Silva asserts that counsel provided ineffective assistance
in failing to present certain arguments at sentencing. This
issue falls outside the appellate waiver provision. However, as
a general rule, claims of ineffective assistance of counsel must
be raised in a 28 U.S.C. § 2255 (2012) motion rather than on
direct appeal, unless the appellate record conclusively
demonstrates ineffective assistance. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Because the record here does
not conclusively establish that counsel was constitutionally
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ineffective in presenting sentencing arguments, the claim is not
subject to review on direct appeal.
Accordingly, we dismiss the appeal of Silva’s sentence and
otherwise affirm the judgment of the district court. 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.
DISMISSED
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