UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4392
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERCULANO ALBARRAN-MARTINEZ, a/k/a El Nene, a/k/a Oscar
Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:10-cr-00005-RLV-DCK-1)
Submitted: November 30, 2012 Decided: December 20, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Frank A. Abrams, FRANK ABRAMS, PLLC, Asheville, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney,
William M. Miller, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herculano Albarran-Martinez pled guilty to conspiracy
to distribute and to possess with intent to distribute at least
five kilograms of cocaine and was sentenced to 240 months of
imprisonment. On appeal, he raises two issues: (1) whether
counsel was ineffective for stipulating to a 240-month sentence;
and (2) whether his sentence was reasonable. For the reasons
that follow, we affirm in part, and dismiss in part.
Claims of ineffective assistance of counsel are not
cognizable on direct appeal, unless the record conclusively
establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Rather, to allow
for adequate development of the record, claims of ineffective
assistance generally should be brought in a 28 U.S.C.A. § 2255
(West Supp. 2012) motion. United States v. Gastiaburo, 16 F.3d
582, 590 (4th Cir. 1994). We perceive no ineffective assistance
of counsel on the record at this time. Thus, we affirm the
appeal of this issue.
Albarran-Martinez has waived appellate review of
whether his sentence was reasonable. See Gall v. United States,
552 U.S. 38, 49 (2007) (providing review standard). Albarran-
Martinez waived his right to appeal his sentence in his plea
agreement. This waiver was specifically reviewed at his plea
hearing, which otherwise complied with Fed. R. Crim. P. 11.
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Under these circumstances, we conclude that he has waived
appellate review of this issue as argued by the Government on
appeal. See United States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (noting that a defendant may waive his
right to appeal if that waiver is a knowing and intelligent
decision to forgo the right to appeal). Accordingly, we dismiss
the appeal of this issue. 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 IN PART;
DISMISSED IN PART
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