                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4071



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOSE GUADALUPE RAIGOSA, a/k/a Jose Guadalupe
Solis,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-268)


Submitted:   July 20, 2005                 Decided:   August 12, 2005


Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Vaughan S. Winborne, Jr., Raleigh, North Carolina, for Appellant.
Angela Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jose Raigosa appeals the 63-month sentence imposed upon

his guilty plea to conspiracy to possess with intent to distribute

in excess of 100 kilograms of marijuana, 21 U.S.C. § 846 (2000).

Counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that, in his opinion, there exist no

meritorious     grounds   for   appeal.     However,    counsel    addresses

Raigosa’s request that he raise an ineffective assistance of

counsel claim.        Raigosa has filed pro se supplemental briefs,

arguing that his sentence violates Apprendi v. New Jersey, 530 U.S.

466 (2000), and United States v. Booker, 125 S. Ct. 738 (2005).

Raigosa also argues that his attorney was ineffective for failing

to seek a continuance at sentencing based on his co-defendant’s

recantation of the testimony implicating Raigosa’s role in the

offense.   For the reasons that follow, we affirm.

           The indictment charged Raigosa with conspiring to possess

with   intent    to   distribute   “in    excess   of   100    kilograms   of

marijuana.”     In addition, Raigosa stipulated in the plea agreement

that the quantity of marijuana involved was in excess of 100

kilograms and, at his Fed. R. Crim. P. 11 hearing, admitted that

the quantity of marijuana exceeded 100 kilograms.             Accordingly, we

find no error under Apprendi.




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              To the extent that Raigosa challenges his sentence under

United States v. Booker, we find no error.               At sentencing, the

district court assigned a base offense level of 26.                  See U.S.

Sentencing Guidelines Manual § 2D1.1 (2003).              Three levels were

deducted for acceptance of responsibility.           See USSG § 3E1.1(b).

The court denied the recommended three-level addition for Raigosa’s

role in the offense, see USSG § 3B1.1(b), resulting in a total

offense level of 23.      With three criminal history points, Raigosa

had a criminal history category of II.         The guideline range was 51-

63 months imprisonment; however, the statutory minimum sentence was

60 months.      See 21 U.S.C. § 841(b)(1)(B)(vii) (2000).            The court

imposed   a    sentence   of   63   months,   followed   by   four   years   of

supervised release.       Because Raigosa received no enhancements to

his base offense level, there was no error under Booker.

              We also find that the district court did not commit plain

error in applying the guidelines as mandatory. In United States v.

White, 405 F.3d 208 (4th Cir. 2005), this court held that treating

the guidelines as mandatory was error and that the error was plain.

Id. at 216-17.      We declined to presume prejudice, however, id. at

217-18, and held that the “prejudice inquiry, therefore, is . . .

whether after pondering all that happened without stripping the

erroneous action from the whole, . . . the judgment was . . .

substantially swayed by the error.” Id. at 223 (internal quotation

marks and citations omitted).          To make this showing, a defendant


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must “demonstrate, based on the record, that the treatment of the

guidelines as mandatory caused the district court to impose a

longer sentence than it otherwise would have imposed.” Id. at 224.

Because the record in White provided no nonspeculative basis

suggesting that the court would have sentenced the defendant

differently had the guidelines been advisory instead of mandatory,

this court concluded that the error did not affect the defendant’s

substantial rights.       Id. at 225.

              In sentencing Raigosa, the district court stated that it

found   the    sentence   “certainly    fair,”   in   light   of   the   higher

sentence that Raigosa could have received had he received the

three-level addition for his role in the offense.                  The record

contains no nonspeculative basis on which this court could conclude

that the district court would have sentenced Raigosa to a lesser

sentence had the court proceeded under an advisory guideline

regime.   See White, 405 F.3d at 223 (finding defendant failed to

meet burden of demonstrating actual prejudice where “the district

court made certain statements suggesting that it was content to

sentence [the defendant] within the guideline range”).                    Thus,

Raigosa has failed to demonstrate that the plain error affected his

substantial rights.

              Both   counsel   and   Raigosa     have    raised    claims   of

ineffective assistance of trial counsel.                However, ineffective

assistance of counsel claims are not appropriately raised on direct

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appeal   unless    it   appears     conclusively    from    the     record     that

counsel’s    performance     was     ineffective.          United     States    v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).             Raigosa has failed

to meet the high burden necessary to raise ineffective assistance

of counsel on direct appeal.              Rather, to allow for adequate

development of a record, Raigosa must bring this claim, if at all,

in a 28 U.S.C. § 2255 (2000) motion.

            In accordance with the requirements of Anders, we have

reviewed    the   entire   record    in   this   case    and   have    found    no

meritorious issues for appeal.            Accordingly, we grant Raigosa’s

motion to file his supplemental pro se brief out of time, but we

affirm Raigosa’s conviction and sentence.                This court requires

counsel to inform his client, in writing, of his right to petition

the Supreme Court of the United States for further review.                If the

client requests a petition be filed, but counsel believes 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 the client.                 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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