UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4907

JARED JORGE IRULA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-97-293)

Submitted: June 16, 1998

Decided: June 30, 1998

Before HAMILTON and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Peter D. Hardy,
Special Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Jared Jorge Irula pleaded guilty to one count of illegally reentering
the United States after being deported, in violation of 8 U.S.C. § 1326
(1994). In August 1997, the district court conducted a Fed. R. Crim.
P. 11 hearing and accepted Irula's plea, which was entered without
benefit of a written plea agreement. In October 1997, Irula moved for
appointment of new trial counsel and to set aside his guilty plea. Irula
asserted that he received ineffective assistance of trial counsel
because counsel allowed Irula to plead guilty to an indictment that
charged Irula with reentry after deportation subsequent to a convic-
tion for an aggravated felony rather than a misdemeanor. On October
17, 1997, the district court denied the motion to withdraw the guilty
plea because Irula in fact pleaded guilty to the amended charge of
simple illegal reentry. Irula was then sentenced to twenty-four months
in prison, one year of supervised release, and a $100 special assess-
ment. Irula appealed the October 17 order.

On March 2, 1998, Irula moved the district court to supplement the
record with documents from Irula's deportation proceedings so he
could assert ineffective assistance of counsel on direct appeal. The
district court denied the motion to supplement. Counsel then filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that Irula received ineffective assistance of trial counsel because
counsel failed to inform Irula that he could have defended against the
charge of illegal reentry by attacking the validity of his underlying
deportation hearing. Though informed of his right to file a supple-
mental brief pro se, Irula has not done so.

A claim of ineffective assistance of counsel is not cognizable on
direct appeal unless the record conclusively shows ineffective assis-
tance. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Such claims are more appropriately raised by a motion filed pursuant
to 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998). See id.

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Irula's notice of appeal purported to appeal the October 17 order
denying his motion to set aside his guilty plea. The ineffective assis-
tance of counsel claim Irula now raises on appeal is different from
that raised before the district court in his motion to withdraw his plea.
Thus, the district court did not consider the ineffective assistance of
counsel claim Irula now asserts on appeal, and did not have the
opportunity to make any factual or legal findings regarding this claim.
Therefore, Irula's ineffective assistance claim on appeal is not sup-
ported by the record and the claim should be raised in a § 2255 pro-
ceeding. We grant the Appellee's unopposed motion to submit the
case on the briefs and affirm Irula's conviction.

In accordance with the requirement of Anders, we have examined
the entire record in this case and find no meritorious issues for appeal.
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. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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