US v. Christopher Parrish, No. 09-4006 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4006 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER RAY PARRISH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (5:08-cr-00099-FL-1) Submitted: December 9, 2009 Decided: January 13, 2010 Before MICHAEL, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Christopher Ray Parrish appeals the sentence imposed after he pled guilty, pursuant to a plea agreement, to possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006), and possession of a firearm in furtherance of a drug trafficking U.S.C. § 924(c) (2006). crime, in violation of 18 On appeal, Parrish argues that trial counsel provided ineffective assistance by failing to object to the probation officer s recommendation sentencing as a career offender. dismiss the appeal on the that he qualified for The Government has moved to ground that claims of ineffective assistance of counsel are not cognizable on direct appeal. We deny the Government s motion to dismiss but affirm Parrish s sentence. In the concluded that offender based convictions: presentence Parrish on report, the probation qualified for sentencing prior North Carolina two as officer a career state court possession with intent to manufacture, sell and deliver marijuana; and possession with intent to manufacture, sell and deliver marijuana and cocaine. his status as a career offender, but Parrish did not contest requested a downward variance based on an argument that the sentencing range overrepresented the seriousness of his prior crimes. 2 The district court denied the motion and sentenced Parrish to 262 months of imprisonment. Parrish argues that counsel should have objected to his career offender status on the ground that he did not have the required predicate felony convictions for career offender sentencing, because his prior state drug convictions were not punishable by more than one year of imprisonment. He bases this argument on the Supreme Court s decision in United States v. Rodriquez, 553 U.S. 377 (2008). He also relies on United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008), which interpreted the North Carolina sentencing statutes to require an examination of each defendant s prior record level to determine if a particular crime was punishable by more than one year of imprisonment. The Government argues in its motion to dismiss that the objection Parrish asserts trial counsel should have raised was foreclosed by binding precedent, specifically this court s decision in claims of United States v. Harp, 406 F.3d 242 (4th Cir. 2005). The Government correctly notes that ineffective assistance of counsel are generally not cognizable on direct appeal. Cir. 1997). United States v. King, 119 F.3d 290, 295 (4th Rather, to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2009) motion. See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). 3 An exception exists when the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Our review of the record leads us to conclude that it fails to establish that counsel was ineffective. We decline, however, to dismiss the appeal, as the policy regarding claims of ineffective assistance of counsel asserted on direct appeal is not jurisdictional, and dismissing the appeal would not promote judicial efficiency. Accordingly, although we deny the Government s motion to dismiss dispense the with appeal, oral we argument affirm Parrish s because the sentence. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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