UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4313
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PEDRO GARCIA SIFUENTES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:11-cr-00109-RJC-DCK-1)
Submitted: December 20, 2012 Decided: January 8, 2013
Before AGEE, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pedro Garcia Sifuentes appeals his conviction and
aggregate seventy-four-month downward variant sentence for
possessing a firearm in furtherance of a drug-trafficking crime,
in violation of 18 U.S.C. § 924(c) (2006), and for possessing a
firearm as an undocumented alien, in violation of 18 U.S.C.
§ 922(g)(5) (2006). Sifuentes’ counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which
he states that he could identify no meritorious issues for
appeal, but questioning (1) whether Sifuentes was denied
effective assistance of counsel with respect to the application
to his § 922(g)(5) sentence of a cross-reference under U.S.
Sentencing Guidelines Manual (“USSG”) § 2K2.1(c)(1)(A), and
(2) whether the Government breached the plea agreement when it
declined to make a substantial assistance motion on Sifuentes’
behalf.
As counsel recognizes, neither of the claims raised by
Sifuentes entitles him to relief. Sifuentes’ ineffective
assistance claim suffers from the obvious defect that it fails
to identify how his trial counsel performed deficiently. His
trial counsel did, after all, challenge the application of the
cross-reference before the district court. The mere fact that
counsel failed to convince the district court that his position
was correct does not “conclusively establish[ ]” ineffective
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assistance, and we therefore decline to review Sifuentes’ claim
on direct appeal. United States v. Baptiste, 596 F.3d 214, 216
n.1 (4th Cir. 2010).
Sifuentes is similarly incorrect in claiming that the
Government breached the plea agreement when it did not move for
a downward departure based on substantial assistance, as the
record suggests no reason to surmise that the Government acted
in bad faith or with an unconstitutional motive in declining to
file a substantial assistance motion. See United States v.
Snow, 234 F.3d 187, 191 (4th Cir. 2000).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This court requires that counsel inform Sifuentes, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Sifuentes 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 Sifuentes. 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
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