                                                           [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                        JUNE 25, 2008
                                                     THOMAS K. KAHN
                               No. 07-15180
                                                          CLERK
                            Non-Argument Calendar
                          ________________________

                  D. C. Docket No. 07-00024-CR-ORL-28DAB

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                     versus

VICTOR M. BELTRAN RODRIGUEZ,
                                                       Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                 (June 25, 2008)

Before BIRCH, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      Victor M. Beltran Rodriguez appeals from his 156-month sentence for

conspiracy to possess with intent to distribute five kilograms or more of cocaine
hydrochloride, 21 U.S.C. §§        841(a)(1), (b)(1), and 846 (“Count 1”), and

possession with intent to distribute five kilograms or more of cocaine

hydrochloride, 21 U.S.C. § 841 (a)(1), and (b)(1)(A) (“Count 2”).          On appeal,

Beltran argues that he received ineffective assistance of counsel because his

counsel made no objections to: (1) the facts in the PSI; and (2) two Sixth

Amendment errors that occurred when the district court found that Beltran was a

manager or supervisor, under U.S.S.G. § 3B1.1(b), even though this was not

charged in the indictment or found by the jury, and when the district court found a

drug quantity that was in excess of the amount to which he pled guilty. After

thorough review, we affirm.

      “Whether a criminal defendant’s trial counsel was ineffective is a mixed

question of law and fact, subject to de novo review.” United States v. Bender, 290

F.3d 1279, 1284 (11th Cir. 2002) (quotations omitted). “We will not generally

consider claims of ineffective assistance of counsel raised on direct appeal where

the district court did not entertain the claim nor develop a factual record.” Id.

However, we can review an ineffective assistance of counsel claim irrespective of

whether the district court held an evidentiary hearing, so long as “there is sufficient

evidence in the trial record regarding the claim.” United States v. Camacho, 40




                                          2
F.3d 349, 355 n.6 (11th Cir. 1994), overruled in part on other grounds by United

States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001).

      An ineffective assistance of counsel claim is considered under the two-part

test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to

prove ineffective assistance of counsel, a defendant must show (1) that counsel’s

performance was constitutionally deficient, and (2) that he was prejudiced as a

result. Id. If the defendant makes an insufficient showing on one component, the

court need not address the other. Id. at 697. Counsel’s representation is judged by

an objective standard of reasonableness, and “[j]udicial scrutiny of counsel’s

performance must be highly deferential.” Id. at 688-89. Unless the defendant can

rebut the “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance,” he cannot show that counsel’s performance

was constitutionally deficient. Id. at 689. We also have noted that counsel is “not

ineffective for failing to raise a nonmeritorious issue.” Chandler v. Moore, 240

F.3d 907, 917 (11th Cir. 2001).

      If the district court applies the guidelines as advisory, nothing in Booker

prohibits district courts from making, under a preponderance-of-the-evidence

standard, additional factual findings that go beyond a defendant’s admission or

facts found by the jury. United States v. Chau, 426 F.3d 1318, 1324 (11th Cir.



                                         3
2005). Extra-verdict enhancements “remain[] a constitutional part of guidelines

sentencing in the post-Booker era,” where the guidelines are applied in an advisory

manner. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005).

      As an initial matter, Beltran’s claim of ineffective assistance of counsel is

ripe for disposition on direct appeal because the record is sufficiently developed to

consider the claim. Camacho, 40 F.3d at 355 n.6. Turning to the merits, Beltran’s

claim that his counsel should have objected to the facts in the PSI fails because

Beltran himself twice told the court that he had read the PSI and had no objections

to the facts in the PSI or to the application of the Guidelines to those facts.

Moreover, Beltran does not even argue on appeal that these facts were inaccurate;

rather, he simply says that his counsel was ineffective for failing to object to them.

He thus has not shown that counsel’s errors, if any, “actually had an adverse effect

on the defense.” Strickland, 466 U.S. at 693.

      Likewise, we are unpersuaded by Beltran’s contention that the district court

violated Beltran’s Sixth Amendment rights by finding certain facts by a

preponderance of the evidence. The district court clearly treated the guidelines as

advisory, and sentenced Beltran to a sentence below that which was authorized by

the counts of conviction.    Chau, 426 F.3d at 1324. In short, counsel was not




                                          4
ineffective for failing to raise these nonmeritorious objections in the district court.

Chandler, 240 F.3d at 917.1

       We therefore affirm Beltran’s sentence.

       AFFIRMED.




       1
         Because Beltran asserts for the first time in his reply brief that the district court’s
explanation of the chosen sentence was insufficient to satisfy 18 U.S.C. § 3553(c), this issue is
waived and we will not address it. United States v. Day, 405 F.3d 1293, 1294 n.1 (11th Cir.
2005).

                                                 5
