US v. Christopher Parrish

Filing 920100113

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4006 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER RAY PARRISH, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 crime, in violation of 18 U.S.C. 924(c) (2006). On appeal, Parrish argues that trial counsel provided ineffective assistance by failing to object to the probation officer's recommendation that he qualified for sentencing as a career offender. dismiss the appeal on the ground The Government has moved to that claims of ineffective We assistance of counsel are not cognizable on direct appeal. deny the Government's motion to dismiss but affirm Parrish's sentence. In concluded offender the presentence report, for North the probation as a officer career court that based Parrish on two qualified prior sentencing Carolina state convictions: 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. The district 2 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 United States v. Harp, 406 F.3d 242 (4th Cir. 2005). The Government correctly notes that claims of 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 An exception exists when the F.3d 415, 418 (4th Cir. 1994). 3 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 We that it fails to establish that counsel was ineffective. 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 the appeal, oral we affirm Parrish's the sentence. and We legal dispense with argument because facts contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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