                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4749


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

JEROMINO MORALES LOPEZ,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:07-cr-00078-LHT-1)


Submitted:    September 3, 2009           Decided:   September 22, 2009


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, P.A., Asheville, North
Carolina, for Appellant.   Edward R. Ryan, Acting United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jeromino Morales Lopez pled guilty pursuant to a plea

agreement     to   one        count     of     possession       with    the       intent     to

distribute 50 grams or more of methamphetamine, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(A) (2006).                          The district court

sentenced   him     to    a    within-Guidelines           sentence      of      80    months’

imprisonment.        On       appeal,        Lopez    asserts    that       trial      counsel

rendered    ineffective            assistance        by   failing      to     move     for     a

downward departure from the Guidelines range on account of his

status as an alien or to present evidence of the consequences

his alien status would have on his incarceration.                                We conclude

these claims are not cognizable on direct appeal and affirm.

            Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.                        United States v. King,

119 F.3d    290,    295       (4th      Cir.   1997).       Rather,         to    allow      for

adequate development of the record, a defendant must ordinarily

bring such claims in a 28 U.S.C.A. § 2255 (West Supp. 2009)

motion.     See id.; United States v. Hoyle, 33 F.3d 415, 418

(4th Cir. 1994).              An      exception       exists      where          the   record

conclusively establishes ineffective assistance.                             United States

v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

            To succeed on a claim of ineffective assistance of

counsel, Lopez must show that counsel’s performance fell below

an   objective     standard        of    reasonableness         and    was    prejudicial.

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Strickland     v.      Washington,       466       U.S.    668,    687-88,        692   (1984).

Under the first Strickland prong, Lopez must demonstrate that

counsel’s     performance         fell     below          an   objective         standard     of

reasonableness under “prevailing professional norms.”                                    Id. at

688.    A reviewing court cannot engage in hindsight; rather, the

reasonableness of counsel’s performance is evaluated within the

context of the circumstances at the time of the alleged error.

Id. at 690.        To satisfy the second Strickland prong, Lopez must

demonstrate 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.        “A

reasonable probability is a probability sufficient to undermine

confidence        in   the   outcome.”             Id.         Courts      may    bypass      the

performance prong and proceed directly to the prejudice prong

when it is easier to dispose of the case for lack of prejudice.

See id. at 697.

             We     conclude      that    the       record      does    not       conclusively

establish counsel’s ineffectiveness.                       Even assuming that it was

error for counsel to fail to move for a downward departure or

present evidence of the consequences Lopez’ alien status would

have on his incarceration, Lopez fails to point to any evidence

in    the   record     suggesting    that          the    district      court      would     have

sentenced him to a shorter prison term had counsel so advocated,

and we find none apparent on this record.                           We therefore affirm

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the district court’s judgment.       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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