US v. Patrick Silva

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00026-MR-DLH-1. Copies to all parties and the district court. [999789592]. [15-4340]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4340

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK RONALD SILVA,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:14-cr-00026-MR-DLH-1)

Submitted:

February 29, 2016

Decided:

April 6, 2016

Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Patrick Ronald Silva pleaded guilty, pursuant to a plea
agreement, to coercing a minor to produce child pornography, in
violation of 18 U.S.C. § 2251(a) (2012).
262 months’ imprisonment.
counsel

was

ineffective

He was sentenced to

On appeal, Silva argues that trial
at

sentencing

in

failing

to

present

certain arguments or in failing to file a motion for a downward
variance or departure.
Silva pled guilty pursuant to a written plea agreement,
wherein

he

waived

his

appellate

rights

except

for

claims

of

ineffective assistance of counsel and prosecutorial misconduct.
Silva has not challenged the validity of the waiver nor has the
Government sought to enforce the waiver.

Accordingly, Silva’s

ineffective assistance of counsel claim is reviewable by this
court.
Silva asserts that counsel provided ineffective assistance
in failing to present certain arguments at sentencing.
issue falls outside the appellate waiver provision.

This

However, as

a general rule, claims of ineffective assistance of counsel must
be raised in a 28 U.S.C. § 2255 (2012) motion rather than on
direct

appeal,

unless

the

appellate

demonstrates ineffective assistance.
523 F.3d 424, 435 (4th Cir. 2008).
not

conclusively

establish

that
2

record

conclusively

United States v. Benton,

Because the record here does
counsel

was

constitutionally

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ineffective in presenting sentencing arguments, the claim is not
subject to review on direct appeal.
Accordingly, we dismiss the appeal of Silva’s sentence and
otherwise
dispense

affirm
with

the

oral

judgment
argument

of

the

because

district
the

facts

court.
and

We
legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED

3