UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-6994

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ISABEL GONZALEZ, a/k/a Chabello, a/k/a Isabel

Garcia,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-00-77; CA-02-726-5-BO)

Submitted: May 10, 2004 Decided: May 26, 2004

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Isabel Gonzalez, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant

United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*In his informal brief, Gonzalez contends that his attorney

told him that he was not pleading guilty as a leader or organizer

of the conspiracy, despite the fact that the indictment described

him as occupying a leadership role. Because Gonzalez should have

been aware of the contents of the indictment at the time of his

guilty plea (and he does not claim otherwise), this issue was

waived in his plea agreement. Moreover, the certificate of

appealability was granted on Gonzalez’s claim that his attorney

withdrew her objection to the leadership enhancement attributed to

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PER CURIAM:

Isabel Gonzalez appealed from the denial of his 28 U.S.C.

§ 2255 (2000) motion. We previously granted a certificate of

appealability on the following issues: whether Gonzalez received

ineffective assistance when his attorney failed to (1) file a

requested notice of appeal and/or (2) pursue objections to drug

quantity, the leadership enhancement, or the obstruction of justice

enhancements at the sentencing hearing.

The district court dismissed these claims (along with

many others), finding that Gonzalez waived the right to file a

§ 2255 motion in his plea agreement. However, the plea agreement

explicitly reserved the right to challenge “ineffective assistance

or prosecutorial misconduct not known to [Gonzalez] at the time of

[Gonzalez’s] guilty plea.” The claims above fall into this

category, as they concern actions or inactions by counsel after

Gonzalez’s guilty plea. In addition, Gonzalez has stated colorable

claims that cannot be decided summarily on the current record.

Thus, with the exception of the claim regarding the

leadership enhancement which has been waived on appeal,* we vacate
him in his presentence report. This claim has now also been waived

by Gonzalez’s failure to address it in his informal brief. See 4th

Cir. R. 34(b). 

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the district court’s dismissal of the claims described above and

remand so that the district court can consider the merits of the

claims in the first instance. We affirm the district court’s

dismissal of Gonzalez’s claim that his attorney improperly failed

to object to the leadership enhancement at sentencing. 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 IN PART;

VACATED AND REMANDED IN PART