US v. Evelyn Baeres-Chicas

Filing 920090812

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4961

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EVELYN BAERES-CHICAS, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge (3:08-cr-00056-MR-1)

Submitted:

July 21, 2009

Decided:

August 12, 2009

Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Carol A. Bauer, Morganton, 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Unpublished opinions are not binding precedent in this circuit.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: Evelyn agreement to Baeres-Chicas entry by pled a guilty deported without felon, 8 a plea U.S.C.

illegal

§ 1326(a), (b)(2) (2006), and was sentenced to seventy months in prison. pursuant She to now appeals. v. Her attorney 386 has U.S. for filed 738 not a brief

Anders whether

California, was

(1967), formally

questioning

counsel

ineffective

objecting to an error in Paragraph 31 of the presentence report (PSR). Baeres-Chicas was notified of her right to file a pro se We affirm. plea Crim. colloquy P. 11.

supplemental brief but has not filed such a brief. Our discloses review of the transcript with Fed. of the R.

full

compliance

Furthermore, the record reveals that Baeres-Chicas entered her plea voluntarily and knowingly and that there was a factual

basis for the plea. Paragraph 31 of the PSR stated erroneously that

Baeres-Chicas was subject to a maximum sentence of two years in prison. Paragraph because subject At sentencing, defense counsel raised a question about 31. of to her a After some discussion, it was agreed that, was

criminal twenty-year

record, maximum

Baeres-Chicas sentence,

actually see 8

U.S.C.

§ 1326(b)(2), rather than the two-year sentence as set forth in the PSR. The parties agreed that the advisory Guidelines range After considering the 18 U.S.C. 2

was 70-87 months in prison.

§ 3553(a) (2006) factors, the district court sentenced BaeresChicas to seventy months in prison. To allow for adequate development of the record, a defendant must ordinarily bring a claim of ineffective

assistance of counsel in a 28 U.S.C. § 2255 (2000) motion unless it conclusively appears on the face of the record that counsel provided inadequate representation. United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Given the lack of

prejudice to Baeres-Chicas flowing from the error in the PSR, we conclude that the required showing has not been made. We have reviewed the entire record in accordance with Anders appeal. and have not identified any meritorious issues for

Accordingly, we affirm.

This court requires counsel

inform Baeres-Chicas, in writing, of her right to petition the Supreme Court of the United States for further review. If

Baeres-Chicas requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy of the motion was served on Baeres-Chicas. facts and legal We dispense with oral argument because the contentions are adequately presented in the

3

materials

before

the

court

and

argument

would

not

aid

the

decisional process.

AFFIRMED

4