UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4311
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANCISCO GASPAR SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:15-cr-00011-GMG-RWT-2)
Submitted: February 17, 2017 Decided: March 9, 2017
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Sherman L. Lambert, Sr., THE LAW OFFICES OF SHERMAN L. LAMBERT,
SR., PLLC, Shepherdstown, West Virginia, for Appellant. Betsy
Steinfeld Jividen, Acting United States Attorney, Lara K.
Omps-Botteicher, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Gaspar Sanchez appeals from his 121-month prison
sentence entered pursuant to a jury verdict finding him guilty
of conspiracy to distribute methamphetamine and possession with
intent to distribute methamphetamine. On appeal, Sanchez
contends that his attorney was ineffective for failing to timely
file objections to the presentence report (“PSR”). We dismiss
the appeal.
Claims of ineffective assistance of counsel generally are
not cognizable on direct appeal unless an attorney’s
ineffectiveness conclusively appears on the face of the record.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead, such claims should be raised in a motion brought
pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
To succeed on a claim of ineffective assistance of counsel,
Sanchez must show that (1) counsel’s performance was
constitutionally deficient, and (2) such deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). To satisfy the performance prong, Sanchez must
demonstrate “that counsel’s representation fell below an
objective standard of reasonableness . . . under prevailing
professional norms.” Id. at 688. To satisfy the prejudice
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prong, Sanchez must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
Here, trial counsel admitted to overlooking the PSR due to
personal commitments. The record conclusively shows that
counsel’s inaction was not based on any strategic decision and
that counsel intended, but failed, to file objections.
Moreover, for purposes of the appeal, the Government does not
challenge the conclusion that counsel’s performance fell below
an objective standard of reasonableness.
Turning to the prejudice prong, Sanchez does not examine
each of the proposed objections or analyze their validity; *
Sanchez simply concludes that “there exists sufficient evidence
on the record to conclude that there is a reasonable probability
that Sanchez would have received a lighter sentence had written
objections been properly filed.” Federal Rule of Appellate
Procedure 28(a)(8)(A) requires that a brief must contain the
“appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which
the appellant relies . . . .” Failure to comply with this rule
*Counsel appears to believe that the objections are not
part of the record on appeal, thereby preventing appellate
review. However, the objections are included in the record as
an addendum to the PSR.
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triggers abandonment of the claim on appeal. Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). Because
Sanchez has failed to flesh out his claims of prejudice and
provides no legal or factual support for the conclusion that
there is a reasonable probability that the objections in this
case, if considered, would have altered Sanchez’s sentence, we
conclude that Sanchez has waived consideration of the issue of
prejudice in this appeal.
As such, we dismiss the appeal without prejudice to Sanchez
raising the claim in a § 2255 motion, where the record can be
properly developed. 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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