                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-7461
PAULITO SALAZAR-ACUNA,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                    (CR-00-212; CA-03-231-3)

                        Submitted: July 28, 2004

                      Decided: September 28, 2004

     Before WILKINSON and DUNCAN, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Vacated in part and remanded by unpublished per curiam opinion.


                              COUNSEL

Paulito Salazar-Acuna, Appellant Pro Se. Jack M. Knight, Jr., Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                 UNITED STATES v. SALAZAR-ACUNA
                             OPINION

PER CURIAM:

   Paulito Salazar-Acuna appeals the district court’s summary dis-
missal of his motion pursuant to 28 U.S.C. § 2255 (2000). In his
motion, Salazar-Acuna claimed that: (1) he did not make a knowing
and voluntary plea; (2) the indictment was defective because it did not
allege an exact quantity of drugs and was never returned in open
court; and (3) the court lacked jurisdiction over the case because the
drug laws have been repealed. He also claimed that he received inef-
fective assistance of counsel because his attorney failed to challenge
the above errors, pressured him into entering a plea agreement that
held him accountable for a greater drug quantity than was alleged in
the indictment, and failed to file a requested notice of appeal. By
order dated February 19, 2004, we granted a certificate of appeala-
bility as to Salazar-Acuna’s claim that his attorney failed to file a
requested notice of appeal but denied a certificate of appealability as
to his remaining claims. We now vacate in part the district court’s
order and remand for further proceedings.

   In order to succeed on a claim of ineffective assistance of counsel,
a defendant must show that his counsel’s performance fell below an
objective standard of reasonableness and that counsel’s deficient per-
formance was prejudicial. Strickland v. Washington, 466 U.S. 668,
687-88 (1984). Rule 4(b) of the Rules Governing Section 2255 Pro-
ceedings authorizes summary dismissal of claims without a response
from the Government only if it plainly appears from the face of the
motion, exhibits, and prior proceedings that the movant is not entitled
to relief. Otherwise, the district court shall order the Government to
file a response or take other appropriate action. This Court reviews
the district court’s summary dismissal for abuse of discretion. See
United States v. Oliver, 865 F.2d 600, 601 (4th Cir. 1989).

   Under United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993), coun-
sel’s failure to pursue an appeal requested by a defendant constitutes
ineffective assistance of counsel, regardless of the likelihood of suc-
cess on the merits. Because there is no evidence in the record to dis-
pute Salazar-Acuna’s assertion that his attorney failed to file a
requested notice of appeal, and his allegation, if true, would entitle
                  UNITED STATES v. SALAZAR-ACUNA                     3
him to relief, we vacate the portion of the district court’s order sum-
marily dismissing this claim and remand to the district court for fur-
ther proceedings consistent with this opinion. By this disposition, we
express no view as to the ultimate merits of Salazar-Acuna’s claim.

   We deny Salazar-Acuna’s motions to file a supplemental brief and
reconsider our previous order denying a certificate of appealability as
to his claims relating to Apprendi v. New Jersey, 530 U.S. 466 (2000),
in the wake of the Supreme Court’s decision in Blakely v. Washing-
ton, 124 S. Ct. 2531 (2004). We recently determined that Blakely does
not apply to the application of the federal sentencing guidelines. See
United States v. Hammoud, No. 03-4253, 2004 WL 17030309 (4th
Cir. Aug. 2, 2004) (order), petition for cert. filed, ___ U.S.L.W. ___
(U.S. Aug. 6, 2004) (No. 04-193). We also deny the Government’s
request for a continuance, as evidence it seeks to obtain is best pre-
sented to the district court on remand. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

                             VACATED IN PART AND REMANDED
