United States of America v. Richardson, 195 F.3d 192, 198 4th Cir. 1999 noting ineffective assistance of counsel…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4334
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CONCEPCION GARCIA-URIBE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-160)
Submitted: March 29, 2006 Decided: May 26, 2006
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
T. O. Stokes, III, Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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*While we grant Garcia-Uribe’s motion to file a pro se
supplemental brief and have considered the issues raised therein,
we find his attack on his sentence meritless. We also find he
fails to meet the high burden necessary to raise ineffective
assistance of counsel on appeal. See United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999) (noting ineffective assistance of
counsel claims are not cognizable on direct appeal unless the
record conclusively establishes ineffective assistance).
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PER CURIAM:
Appellant Concepcion Garcia-Uribe pled guilty pursuant to
a written plea agreement to one count of violating 21 U.S.C.
§ 841(a)(1), possession with intent to distribute more than five
kilograms of a mixture and substance containing a detectable amount
of cocaine. Garcia-Uribe also agreed in his plea agreement that
the quantity of drugs attributable to him was “at least 50
kilograms, but less than 150 kilograms.” Defense counsel agreed at
the sentencing hearing that the applicable sentencing guidelines
range was 135 to 168 months, and Garcia-Uribe does not dispute that
range on appeal. His counsel’s only claim on appeal is that the
court’s 160-month sentence was too high. * We affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court is no longer bound by the range prescribed by the
federal sentencing guidelines. United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005). In determining a sentence post-Booker,
however, sentencing courts are still required to calculate and to
consider the federal sentencing guidelines range and the factors
set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). Id.

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This court will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id. at
546-47; see also United States v. Green, 436 F.3d 449 (4th Cir.
2006) (discussing extent to which sentencing court is guided by the
guidelines and meaning of appellate review for “unreasonableness”).
The district court stated at sentencing that it “entered
this prison sentence after giving consideration to the Sentencing
Guidelines as they exist in a recommendatory condition. The Court
has also considered 3553 under Title 18 in arriving at this
decision, which it believes to be a reasonable sentence.” (JA 19).
Because the district court’s sentencing did not violate Booker and
because the sentence was within an unchallenged sentencing
guidelines range, we conclude Garcia-Uribe’s 160-month sentence was
reasonable. We therefore affirm his sentence. We dispense with
oral argument because the facts and legal contentions of the
parties are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED

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