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    1) Rivera pled guilty to one count of bulk cash smuggling and was sentenced to 33 months imprisonment. 2) The appellate court reviewed Rivera's claims that his prosecution violated double jeopardy and that the district court should have ordered his deportation instead of imprisonment, and found them to be without merit. 3) Rivera's claim of ineffective assistance of counsel was not considered on direct appeal as the record did not conclusively show counsel was ineffective; this claim is more appropriately made in a §2255 motion.

    Original Description:

    Filed: 2010-03-23 Precedential Status: Non-Precedential Docket: 084522

    Original Title

    United States v. Rivera, 4th Cir. (2010)

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    1) Rivera pled guilty to one count of bulk cash smuggling and was sentenced to 33 months imprisonment. 2) The appellate court reviewed Rivera's claims that his prosecution violated double jeopardy and that the district court should have ordered his deportation instead of imprisonment, and found them to be without merit. 3) Rivera's claim of ineffective assistance of counsel was not considered on direct appeal as the record did not conclusively show counsel was ineffective; this claim is more appropriately made in a §2255 motion.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    23 views4 pages

    Unpublished

    Uploaded by

    Scribd Government Docs
    1) Rivera pled guilty to one count of bulk cash smuggling and was sentenced to 33 months imprisonment. 2) The appellate court reviewed Rivera's claims that his prosecution violated double jeopardy and that the district court should have ordered his deportation instead of imprisonment, and found them to be without merit. 3) Rivera's claim of ineffective assistance of counsel was not considered on direct appeal as the record did not conclusively show counsel was ineffective; this claim is more appropriately made in a §2255 motion.

    Copyright:

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    of 4

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 08-4522

    UNITED STATES OF AMERICA,


    Plaintiff Appellee,
    v.
    MEYKIUM A. SIRIAS RIVERA,
    Defendant Appellant.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. James A. Beaty, Jr.,
    Chief District Judge. (1:07-cr-00200-JAB-16)

    Submitted:

    September 3, 2009

    Decided:

    March 23, 2010

    Before KING, GREGORY, and DUNCAN, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    R. Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington, North


    Carolina, for Appellant. Sandra Jane Hairston, Assistant United
    States Attorney, Greensboro, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Meykium A. Sirias Rivera pled guilty pursuant to a
    plea agreement to one count of bulk cash smuggling, in violation
    of 31 U.S.C. 5332(a)(1) (2006).

    The district court sentenced

    Rivera to 33 months imprisonment.

    He now appeals.

    Counsel has

    filed a brief pursuant to Anders v. California, 386 U.S. 738


    (1967), stating that there are no meritorious issues for appeal.
    Rivera has filed a document we construe as a pro se supplemental
    brief.

    We affirm.
    To the extent that Rivera claims that his prosecution

    violated the Constitutions prohibition against double jeopardy,


    this claim is meritless.
    Fifth

    Amendment

    prosecution

    for

    protects
    the

    same

    The Double Jeopardy Clause of the


    a

    defendant

    offense

    after

    against
    acquittal;

    a
    a

    second
    second

    prosecution for the same offense after conviction; and multiple


    punishments for the same offense.

    United States v. Martin, 523

    F.3d 281, 290 (4th Cir.) (internal quotation marks omitted),


    cert. denied, 129 S. Ct. 238 (2008).

    Rivera, however, fails to

    point to any cumulative punishments or successive prosecutions


    in this case.
    Next, Rivera suggests that the district court violated
    his due process rights by imposing a sentence of imprisonment
    instead of ordering that he be deported.

    This claim is also

    without merit, as the district court had no authority to order

    Riveras deportation.

    See United States v. Xiang, 77 F.3d 771,

    772-73 (4th Cir. 1996).


    Finally,
    rendered

    as

    to

    ineffective

    Riveras

    claim

    assistance,

    this

    that

    trial

    claim

    counsel

    is

    more

    appropriately raised in a motion filed pursuant to 28 U.S.C.A.


    2255

    (West

    Supp.

    2009),

    unless

    counsels

    ineffectiveness conclusively appears on the record.

    alleged
    See United

    States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).


    review

    of

    the

    record,

    we

    find

    no

    conclusive

    After

    evidence

    that

    counsel rendered ineffective assistance, and accordingly decline


    to consider the claim on direct appeal.
    In accordance with Anders, we have reviewed the record
    in this case and have found no meritorious issues for appeal. *
    We therefore affirm the district courts judgment.

    This court

    requires that counsel inform Rivera, in writing, of the right to


    petition

    the

    Supreme

    review.

    If

    Rivera

    Court

    of

    requests

    the
    that

    United
    a

    States

    petition

    be

    for

    further

    filed,

    but

    counsel believes that such a petition would be frivolous, then


    *

    Our review of the transcript of the guilty plea hearing


    leads us to conclude that the district court substantially
    complied with the requirements of Fed. R. Crim. P. 11 in
    accepting Riveras guilty plea and that the courts omissions
    did not affect Riveras substantial rights.
    See United States
    v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
    Further, we
    discern no abuse of discretion by the court in imposing the 33month sentence. See Gall v. United States, 552 U.S. 38, 41, 51
    (2007).

    counsel

    may

    move

    representation.

    in

    this

    court

    for

    leave

    to

    withdraw

    from

    Counsels motion must state that a copy thereof

    was served on Rivera.


    We dispense with oral argument because the facts and
    legal
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in

    aid

    the
    the

    materials
    decisional

    process.
    AFFIRMED

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