US v. Pedro Sifuentes, No. 12-4313 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4313 UNITED STATES OF AMERICA, Plaintiff Appellee, v. PEDRO GARCIA SIFUENTES, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 aggregate Garcia Sifuentes seventy-four-month appeals downward his conviction and sentence for variant 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 § 922(g)(5) undocumented (2006). alien, Sifuentes in violation counsel has of 18 filed U.S.C. a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he states appeal, that but he could questioning identify (1) no whether meritorious Sifuentes issues was for denied effective assistance of counsel with respect to the application to his § 922(g)(5) Sentencing sentence Guidelines Manual of a cross-reference ( USSG ) § under 2K2.1(c)(1)(A), U.S. 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 2 establish[ ] ineffective 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. filed, but counsel If Sifuentes requests that a petition be 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 3
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