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United States v. Torres, 04-4004 (2004)

Court: Court of Appeals for the Fourth Circuit Number: 04-4004 Visitors: 27
Filed: Nov. 02, 2004
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4004 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MARGARITO TORRES, a/k/a Mago, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Cameron McGowan Currie, District Judge. (CR-03-265) Submitted: September 17, 2004 Decided: November 2, 2004 Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew R. MacKen
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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4004



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARGARITO TORRES, a/k/a Mago,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (CR-03-265)


Submitted:   September 17, 2004           Decided:   November 2, 2004


Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew R. MacKenzie, BARRETT & MACKENZIE, L.L.C., Greenville, South
Carolina, for Appellant. William Kenneth Witherspoon, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Margarito Torres appeals his conviction and 120-month

sentence imposed after he pled guilty to conspiracy to distribute

and possess with intent to distribute more than 500 grams of

methamphetamine.       Torres’ counsel has filed a brief pursuant to

Anders v. California, 
386 U.S. 738
(1967), raising one issue but

stating that, in his view, there are no meritorious issues for

appeal.   Torres has filed a pro se supplemental brief.            We affirm.

           Counsel questions whether the district court erred in its

assessment    of   a   two-point   enhancement    under    U.S.    Sentencing

Guidelines    Manual   §   3B1.1(c)    (2002),   for   Torres’    role   as   an

organizer, leader, manager, or supervisor of a criminal activity.

Our review of the record leads us to conclude that the district

court did not plainly err in applying the enhancement.             See United

States v. Osborne, 
345 F.3d 281
, 284 (4th Cir. 2003) (stating

standard of review).

           In his pro se supplemental brief, Torres raises several

claims.   First, he contends that his guilty plea was not knowing

and voluntary.     Because Torres did not move in the district court

to withdraw his guilty plea, we review his challenge to the

adequacy of the Rule 11 hearing for plain error.           United States v.

Martinez, 
277 F.3d 517
, 524-25 (4th Cir.) (providing standard of

review), cert. denied, 
537 U.S. 899
(2002).            We find that Torres’

guilty plea was knowingly and voluntarily entered after a thorough


                                      - 2 -
hearing pursuant to Fed. R. Crim. P. 11.                  Torres was properly

advised as to his rights, the offense charged, and the minimum and

maximum sentence for the offense.            The court also determined that

there was an independent factual basis for the plea and that the

plea was not coerced.         See North Carolina v. Alford, 
400 U.S. 25
,

31 (1970); United States v. DeFusco, 
949 F.2d 114
, 119-20 (4th Cir.

1991).    We therefore find no plain error.

            Torres also asserts in his pro se supplemental brief that

counsel provided ineffective assistance.             However, “[i]neffective

assistance claims are not cognizable on direct appeal unless

counsel’s ineffectiveness conclusively appears on the record.”

United States v. James, 
337 F.3d 387
, 391 (4th Cir. 2003), cert.

denied, 
124 S. Ct. 1111
(2004).         Because Torres has failed to meet

this   high     standard,     we   decline    to    address    his    ineffective

assistance of counsel claims on direct appeal.

            In accordance with Anders, we have reviewed the entire

record    for    any    meritorious     issues      and     have     found    none.

Accordingly, we affirm Torres’ conviction and sentence. This court

requires that counsel inform his client, in writing, of his right

to petition the Supreme Court of the United States for further

review.    If the client requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel   may    move    in   this   court    for   leave     to   withdraw   from

representation.        Counsel’s motion must state that a copy thereof


                                      - 3 -
was served on the client.     We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before   the   court   and     argument   would   not   aid   the

decisional process.

                                                                    AFFIRMED




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Source:  CourtListener

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