                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4313


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

PEDRO GARCIA SIFUENTES,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:11-cr-00109-RJC-DCK-1)


Submitted:   December 20, 2012            Decided:   January 8, 2013


Before AGEE, DAVIS, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C.,
Charlotte, North Carolina, for Appellant.    Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Pedro     Garcia     Sifuentes          appeals    his    conviction         and

aggregate       seventy-four-month           downward         variant     sentence          for

possessing a firearm in furtherance of a drug-trafficking crime,

in violation of 18 U.S.C. § 924(c) (2006), and for possessing a

firearm as        an    undocumented       alien,       in   violation    of    18       U.S.C.

§ 922(g)(5)       (2006).         Sifuentes’           counsel    has   filed        a    brief

pursuant to Anders v. California, 386 U.S. 738 (1967), in which

he    states    that     he   could    identify         no   meritorious       issues       for

appeal,     but        questioning     (1)        whether     Sifuentes        was       denied

effective assistance of counsel with respect to the application

to    his   § 922(g)(5)       sentence       of    a    cross-reference        under       U.S.

Sentencing       Guidelines       Manual      (“USSG”)        §   2K2.1(c)(1)(A),           and

(2) whether the Government breached the plea agreement when it

declined to make a substantial assistance motion on Sifuentes’

behalf.

               As counsel recognizes, neither of the claims raised by

Sifuentes       entitles      him     to   relief.           Sifuentes’        ineffective

assistance claim suffers from the obvious defect that it fails

to identify how his trial counsel performed deficiently.                                    His

trial counsel did, after all, challenge the application of the

cross-reference before the district court.                         The mere fact that

counsel failed to convince the district court that his position

was   correct      does    not    “conclusively          establish[      ]”    ineffective

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assistance, and we therefore decline to review Sifuentes’ claim

on direct appeal.        United States v. Baptiste, 596 F.3d 214, 216

n.1 (4th Cir. 2010).

             Sifuentes is similarly incorrect in claiming that the

Government breached the plea agreement when it did not move for

a downward departure based on substantial assistance, as the

record suggests no reason to surmise that the Government acted

in bad faith or with an unconstitutional motive in declining to

file   a   substantial     assistance    motion.      See    United    States   v.

Snow, 234 F.3d 187, 191 (4th Cir. 2000).

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm the judgment of the district court.

This court requires that counsel inform Sifuentes, in writing,

of the right to petition the Supreme Court of the United States

for further review.         If Sifuentes 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 was served on Sifuentes.               We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                                        AFFIRMED

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