US v. Francisco Sanchez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00011-GMG-RWT-2 Copies to all parties and the district court/agency. [1000038953].. [16-4311]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4311

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANCISCO GASPAR SANCHEZ,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:15-cr-00011-GMG-RWT-2)

Submitted:

February 17, 2017

Decided:

March 9, 2017

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Sherman L. Lambert, Sr., THE LAW OFFICES OF SHERMAN L. LAMBERT,
SR., PLLC, Shepherdstown, West Virginia, for Appellant. Betsy
Steinfeld Jividen, Acting United States Attorney, Lara K.
Omps-Botteicher, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Francisco Gaspar Sanchez appeals from his 121-month prison
sentence entered pursuant to a jury verdict finding him guilty
of conspiracy to distribute methamphetamine and possession with
intent

to

distribute

methamphetamine.

On

appeal,

Sanchez

contends that his attorney was ineffective for failing to timely
file objections to the presentence report (“PSR”).

We dismiss

the appeal.
Claims of ineffective assistance of counsel generally are
not

cognizable

on

direct

appeal

unless

an

attorney’s

ineffectiveness conclusively appears on the face of the record.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead,

such

pursuant

to

sufficient

claims
28

should

U.S.C.

development

be

raised

§

2255

(2012),

of

the

in

a

in

record.

motion

order
United

brought

to

permit

States

v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
To succeed on a claim of ineffective assistance of counsel,
Sanchez

must

show

that

(1)

counsel’s

performance

was

constitutionally deficient, and (2) such deficient performance
was prejudicial.
(1984).

To

demonstrate
objective

Strickland v. Washington, 466 U.S. 668, 687

satisfy
“that

standard

the

counsel’s
of

professional norms.”

performance

prong,

representation

reasonableness
Id. at 688.
2

.

.

.

Sanchez

fell
under

below

must
an

prevailing

To satisfy the prejudice

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prong, Sanchez must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

Id. at 694.

Here, trial counsel admitted to overlooking the PSR due to
personal

commitments.

The

record

conclusively

shows

that

counsel’s inaction was not based on any strategic decision and
that

counsel

intended,

but

failed,

to

file

objections.

Moreover, for purposes of the appeal, the Government does not
challenge the conclusion that counsel’s performance fell below
an objective standard of reasonableness.
Turning to the prejudice prong, Sanchez does not examine
each

of

the

proposed

objections

or

analyze

validity; *

their

Sanchez simply concludes that “there exists sufficient evidence
on the record to conclude that there is a reasonable probability
that Sanchez would have received a lighter sentence had written
objections

been

properly

filed.”

Federal

Rule

of

Appellate

Procedure 28(a)(8)(A) requires that a brief must contain the
“appellant’s

contentions

and

the

reasons

for

them,

with

citations to the authorities and parts of the record on which
the appellant relies . . . .”

Failure to comply with this rule

*

Counsel appears to believe that the objections are not
part of the record on appeal, thereby preventing appellate
review.
However, the objections are included in the record as
an addendum to the PSR.

3

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triggers abandonment of the claim on appeal.
Goldsboro,

178

F.3d

231,

241

n.6

(4th

Edwards v. City of

Cir.

1999).

Because

Sanchez has failed to flesh out his claims of prejudice and
provides no legal or factual support for the conclusion that
there is a reasonable probability that the objections in this
case, if considered, would have altered Sanchez’s sentence, we
conclude that Sanchez has waived consideration of the issue of
prejudice in this appeal.
As such, we dismiss the appeal without prejudice to Sanchez
raising the claim in a § 2255 motion, where the record can be
properly developed.
facts

and

materials

legal
before

We dispense with oral argument because the

contentions
the

court

are

adequately

and

argument

presented

would

not

in

the

aid

the

decisional process.
DISMISSED

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