United States v. De La Cruz-Diaz , 82 F. App'x 861 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4196
AUGUSTINE DE LA CRUZ-DIAZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-01-114)
Submitted: November 24, 2003
Decided: December 23, 2003
Before WIDENER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William E. Loose, WILLIAM E. LOOSE, P.A., Asheville, North Car-
olina, for Appellant. Jack M. Knight, Jr., Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DE LA CRUZ-DIAZ
OPINION
PER CURIAM:
Augustine De La Cruz-Diaz pled guilty to transportation of illegal
aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (2000). The district
court sentenced him to thirty months in prison. Under the terms of his
plea agreement, De La Cruz-Diaz waived the right to appeal his con-
viction and sentence, except for claims of prosecutorial misconduct or
ineffective assistance of counsel. De La Cruz-Diaz’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his opinion, there were no meritorious issues for
appeal. Although concluding that such allegations lacked merit, coun-
sel asserted claims of prosecutorial misconduct and ineffective assis-
tance of counsel. De La Cruz-Diaz has been informed of his right to
file a pro se supplemental brief, but has not done so. We affirm De
La Cruz-Diaz’s conviction and sentence.
A defendant may waive his right to appeal if the waiver is knowing
and voluntary. United States v. Brown, 232 F.3d 399, 403 (4th Cir.
2000); United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Our
review of De La Cruz-Diaz’s guilty plea hearing, conducted in accor-
dance with Rule 11 of the Federal Rules of Criminal Procedure, dis-
closes that De La Cruz-Diaz’s waiver of his appeal rights was
knowing and voluntary.
To the extent that De La Cruz-Diaz asserts prosecutorial miscon-
duct, his claims are not supported by the record. Furthermore, ineffec-
tive assistance of counsel claims are not considered on direct appeal
unless counsel’s ineffectiveness conclusively appears on the face of
the record. United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.
1991). Because the record does not conclusively establish that counsel
was ineffective, any such claims are more appropriately raised in a 28
U.S.C. § 2255 (2000) motion. United States v. King, 119 F.3d 290,
295 (4th Cir. 1997).
As required by Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm De
La Cruz-Diaz’s convictions and sentence. The court requires that
counsel inform his client, in writing, of his right to petition the
UNITED STATES v. DE LA CRUZ-DIAZ 3
Supreme Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such a peti-
tion 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 argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED