United States v. Escalante-Martinez , 82 F. App'x 860 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4284
RODOLFO JULIAN ESCALANTE-
MARTINEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-02-23)
Submitted: November 26, 2003
Decided: December 23, 2003
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Thomas Richard Ascik, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.
2 UNITED STATES v. ESCALANTE-MARTINEZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Rodolfo Julian Escalante-Martinez pled guilty to producing false
United States Social Security cards, in violation of 18 U.S.C.
§ 1028(a) (2000), and possession of unauthorized material to produce
resident alien cards and alien employment authorization cards, in vio-
lation of 18 U.S.C.A. § 1546(a) (West Supp. 2003). The district court
sentenced him to thirty months in prison. Under the terms of his plea
agreement, Escalante-Martinez waived the right to appeal his convic-
tion and sentence, except for claims of prosecutorial misconduct or
ineffective assistance of counsel. Escalante-Martinez’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. Escalante-Martinez has been informed of his right
to file a pro se supplemental brief, but has not done so. We affirm
Escalante-Martinez’s convictions 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 Escalante-Martinez’s guilty plea hearing, conducted in
accordance with Rule 11 of the Federal Rules of Criminal Procedure,
discloses that Escalante-Martinez’s waiver of his appeal rights was
knowing and voluntary.
To the extent that Escalante-Martinez 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
UNITED STATES v. ESCALANTE-MARTINEZ 3
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
Escalante-Martinez’s convictions and sentence. The court requires
that counsel inform his client, in writing, of his right to petition the
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