United States of America v. Jose Guadalupe Raigosa, a/k/a Jose Guadalupe Solis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE GUADALUPE RAIGOSA, a/k/a Jose Guadalupe
Solis,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-268)
Submitted: July 20, 2005 Decided: August 12, 2005
Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Vaughan S. Winborne, Jr., Raleigh, North Carolina, for Appellant.
Angela Hewlett Miller, OFFICE OF THE 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Unpublished opinions are not binding precedent in this circuit.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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PER CURIAM:
Jose Raigosa appeals the 63-month sentence imposed upon
his guilty plea to conspiracy to possess with intent to distribute
in excess of 100 kilograms of marijuana, 21 U.S.C. § 846 (2000).
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that, in his opinion, there exist no
meritorious grounds for appeal. However, counsel addresses
Raigosa’s request that he raise an ineffective assistance of
counsel claim. Raigosa has filed pro se supplemental briefs,
arguing that his sentence violates Apprendi v. New Jersey, 530 U.S.
466 (2000), and United States v. Booker, 125 S. Ct. 738 (2005).
Raigosa also argues that his attorney was ineffective for failing
to seek a continuance at sentencing based on his co-defendant’s
recantation of the testimony implicating Raigosa’s role in the
offense. For the reasons that follow, we affirm.
The indictment charged Raigosa with conspiring to possess
with intent to distribute “in excess of 100 kilograms of
marijuana.” In addition, Raigosa stipulated in the plea agreement
that the quantity of marijuana involved was in excess of 100
kilograms and, at his Fed. R. Crim. P. 11 hearing, admitted that
the quantity of marijuana exceeded 100 kilograms. Accordingly, we
find no error under Apprendi.

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To the extent that Raigosa challenges his sentence under
United States v. Booker, we find no error. At sentencing, the
district court assigned a base offense level of 26. See U.S.
Sentencing Guidelines Manual § 2D1.1 (2003). Three levels were
deducted for acceptance of responsibility. See USSG § 3E1.1(b).
The court denied the recommended three-level addition for Raigosa’s
role in the offense, see USSG § 3B1.1(b), resulting in a total
offense level of 23. With three criminal history points, Raigosa
had a criminal history category of II. The guideline range was 51-
63 months imprisonment; however, the statutory minimum sentence was
60 months. See 21 U.S.C. § 841(b)(1)(B)(vii) (2000). The court
imposed a sentence of 63 months, followed by four years of
supervised release. Because Raigosa received no enhancements to
his base offense level, there was no error under Booker.
We also find that the district court did not commit plain
error in applying the guidelines as mandatory. In United States v.
White, 405 F.3d 208 (4th Cir. 2005), this court held that treating
the guidelines as mandatory was error and that the error was plain.
Id. at 216-17. We declined to presume prejudice, however, id. at
217-18, and held that the “prejudice inquiry, therefore, is . . .
whether after pondering all that happened without stripping the
erroneous action from the whole, . . . the judgment was . . .
substantially swayed by the error.” Id. at 223 (internal quotation
marks and citations omitted). To make this showing, a defendant

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must “demonstrate, based on the record, that the treatment of the
guidelines as mandatory caused the district court to impose a
longer sentence than it otherwise would have imposed.” Id. at 224.
Because the record in White provided no nonspeculative basis
suggesting that the court would have sentenced the defendant
differently had the guidelines been advisory instead of mandatory,
this court concluded that the error did not affect the defendant’s
substantial rights. Id. at 225.
In sentencing Raigosa, the district court stated that it
found the sentence “certainly fair,” in light of the higher
sentence that Raigosa could have received had he received the
three-level addition for his role in the offense. The record
contains no nonspeculative basis on which this court could conclude
that the district court would have sentenced Raigosa to a lesser
sentence had the court proceeded under an advisory guideline
regime. See White, 405 F.3d at 223 (finding defendant failed to
meet burden of demonstrating actual prejudice where “the district
court made certain statements suggesting that it was content to
sentence [the defendant] within the guideline range”). Thus,
Raigosa has failed to demonstrate that the plain error affected his
substantial rights.
Both counsel and Raigosa have raised claims of
ineffective assistance of trial counsel. However, ineffective
assistance of counsel claims are not appropriately raised on direct

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appeal unless it appears conclusively from the record that
counsel’s performance was ineffective. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Raigosa has failed
to meet the high burden necessary to raise ineffective assistance
of counsel on direct appeal. Rather, to allow for adequate
development of a record, Raigosa must bring this claim, if at all,
in a 28 U.S.C. § 2255 (2000) motion.
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we grant Raigosa’s
motion to file his supplemental pro se brief out of time, but we
affirm Raigosa’s conviction and sentence. This court requires
counsel to inform his client, in writing, of his right to petition
the Supreme Court of the United States for further review. If the
client requests a petition be filed, but counsel believes 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 the client. 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.
AFFIRMED

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