                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4282



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JORGE E. PARRA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-98-1)


Submitted:   September 29, 2004           Decided:   November 2, 2004


Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


David S. Zapp, New York, New York, for Appellant.      G. Wingate
Grant, II, Assistant United States Attorney, Matthew G. Howells,
Third-Year Law Student, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              In 1998, Jorge E. Parra pled guilty pursuant to a plea

agreement to conspiracy to distribute heroin, in violation of 21

U.S.C. § 846 (2000), and obstruction of justice, in violation of 18

U.S.C.   §    1503   (2000).        Parra    received      concurrent    120-month

sentences, to be followed by five years of supervised release.                    No

appeal was noted from the conviction or sentence.

              In a 28 U.S.C. § 2255 (2000) motion filed in the district

court, Parra asserted that trial counsel was ineffective on two

grounds.      The court dismissed one ground as lacking merit.              In the

second ground, Parra complained that counsel failed to note an

appeal despite Parra’s instructions to do so.                The district court

dismissed this claim on the ground that, as Parra waived his right

to appeal the sentence, counsel’s failure to note an appeal even if

requested to do so did not constitute ineffective assistance of

counsel.

              On appeal, we affirmed the district court’s holding on

the   first    claim.    As    to   the     failure   to   note   an    appeal,   we

determined that the waiver was not so broad that it covered every

claim that might be raised. Therefore, we remanded with directions

to the district court to “determine the facts necessary to assess

counsel’s conduct” under Roe v. Flores-Ortega, 528 U.S. 470 (2000).

United States v. Parra, No. 00-6824, 2000 WL 1714181 (4th Cir.

Nov. 16, 2000) (unpublished).


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           On    remand,    the   Government    acknowledged        sufficient

evidence to establish that Parra directed his former counsel to

appeal, but counsel failed to do so.        The district court therefore

authorized Parra, within ten days of its order, to note an appeal.

           Months later, Parra moved for reconsideration of the

order on the ground that neither he nor counsel received notice of

the order in time to appeal.            In addition, Parra argued that

circuit   precedent    required   the    district   court    to     vacate   the

judgment of conviction and resentence him in order to begin the

appeal period.     Parra asked the court, in resentencing him, to

reconsider his eligibility for a safety valve reduction under U.S.

Sentencing Guidelines Manual § 5C1.2 (1997).

           After a hearing on the motion, the district court vacated

the original judgment of conviction and sentence and reentered the

same order on April 8, 2004.      The court declined Parra’s request to

reconsider him for a safety valve reduction under USSG § 5C1.2.

Parra noted a timely appeal.

           On appeal, Parra asserts that the district court should

have   allowed   him   to   proffer     under   USSG   §    5C1.2    prior   to

resentencing.    He claims as well that his first counsel rendered

constitutionally ineffective assistance in failing to prepare him

for his safety valve proffer to the Government.             We conclude that

the district court did not err in finding authority only to vacate

and reenter judgment, rather than to resentence Parra de novo.


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“[T]he ‘standard practice among federal courts’ in this situation

[is] vacatur of the sentence and summary imposition of a new

sentencing judgment identical in all respects to the earlier one

except for the date of entry.”           United States v. Torres-Otero, 232

F.3d 24, 29 (1st Cir. 2000) (quoting Pratt v. United States, 129

F.3d 54, 62 (1st Cir. 1997)).            This court has followed the same

procedure.     United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993)

(in § 2255 appeal where criminal defense attorney failed to file a

notice of appeal though requested to do so, court reversed and

remanded with instruction to “vacate Peak’s judgment of conviction

and enter a new judgment from which an appeal can be taken.”).

             Parra next contends that his initial counsel rendered

constitutionally ineffective assistance.                “Ineffective 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).       Here, Parra asserts that his original

trial counsel was ineffective in preparing him for the safety valve

proffer.     However, there is no evidence in the record before the

court to support that claim.             General comments by the district

court about counsel’s overall performance at court proceedings are

not sufficient on their face and standing virtually alone to

satisfy the standard set forth in Strickland v. Washington, 466

U.S. 668, 688, 694 (1984).           Therefore, this claim may not be


                                     - 4 -
pursued on direct appeal, though Parra may raise it in a timely

motion to vacate his sentence, 28 U.S.C. § 2255.

          We affirm Parra’s judgment and conviction.   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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