US v. Francisco Sanchez


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-4311 Doc: 50 Filed: 03/09/2017 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4311 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FRANCISCO GASPAR SANCHEZ, Defendant -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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4311 Doc: 50 Filed: 03/09/2017 Pg: 2 of 4 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 Appeal: 16-4311 Doc: 50 Filed: 03/09/2017 Pg: 3 of 4 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 Appeal: 16-4311 Doc: 50 Filed: 03/09/2017 Pg: 4 of 4 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 4

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