UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 95-5912

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

JERRY SANDERS, Defendant - Appellant.

Appeal from the United States District Court for the Western Dis- trict of North Carolina, at Charlotte. Graham C. Mullen, District Judge. (CR-93-34-MU)

Submitted: May 27, 1997 Decided: June 12, 1997

Before MURNAGHAN and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jerry Sanders, Appellant Pro Se. Kenneth Davis Bell, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Jerry Sanders appeals from his conviction upon a guilty plea to conspiring to possess with the intent to distribute and distrib- uting cocaine in violation of 21 U.S.C. § 846 (1994). He raises several ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668, 687 (1984). However, Sanders's ineffec- tive assistance claims fail because his counsel's deficient per- formance does not plainly appear on the face of the record. See United States v. DeFusco, 949 F.2d 114 (4th Cir. 1991). The appro- priate avenue for relief is a motion filed pursuant to 28 U.S.C.A.

§ 2255 (West 1994 & Supp. 1997). Further, to the extent that Sanders complains of counsel's failure to note an appeal, Sanders's filing of a notice of appeal on his own behalf precludes a finding of prejudice based on retained counsel's failure to do so. Accordingly, we affirm Sanders's conviction. We dispense with oral argument because the facts and legal contentions are adequate- ly presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED