United States v. Verde-Gutierez ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4728
JOSE LUIS VERDE-GUTIEREZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-98-46)
Submitted: November 30, 2000
Decided: December 20, 2000
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Eric A. Bach, Charlotte, North Carolina, for Appellant. Brian Lee
Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. VERDE-GUTIEREZ
OPINION
PER CURIAM:
Jose Luis Verde-Gutierez appeals his conviction and sentence for
conspiracy to possess and distribute marijuana and cocaine in viola-
tion of 21 U.S.C.A. § 841(a)(1) (West 1999) and 21 U.S.C. § 846(1994). Verde-Gutierez’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), addressing whether the
district court erred in accepting Verde-Gutierez’s guilty plea and
whether the district court correctly applied the sentencing guidelines
in calculating Verde-Gutierez’s sentence. Counsel concedes, how-
ever, that there are no meritorious issues for appeal. Verde-Gutierez
filed a pro se supplemental brief, claiming that counsel was ineffec-
tive for failing to move for a downward departure pursuant to 5K2.0
of the U.S. Sentencing Guidelines Manual ("USSG") (1998) and that
he was denied an opportunity to provide substantial assistance to the
Government in exchange for a reduced sentence. Finding no revers-
ible error, we affirm.
First, we give due deference to the district court’s decision as to
how best to conduct the Rule 11 hearing, and we will only vacate
Verde-Gutierez’s conviction if the court’s alleged violations of Rule
11 affected his substantial rights. United States v. DeFusco, 949 F.2d
114, 116-17 (4th Cir. 1991). Counsel does not point to any specific
violations of Rule 11 nor does our review of the record disclose any.
Because our review of the record reveals that the district court fully
complied with Rule 11, we find that the district court did not err in
accepting Verde Gutierez’s guilty plea. See United States v. Goins, 51
F.3d 400, 402 (4th Cir. 1995) (stating standard of review).
Second, Verde-Gutierez contends that the district court erred in cal-
culating his offense level and sentencing him to sixty months of
imprisonment. The district court correctly interpreted and applied the
guidelines in ascertaining Verde-Gutierez’s total offense level of
twenty-seven and criminal history category of II. The district court
departed downward to an offense level of twenty-five and a criminal
history category of I, yielding a sentencing range of fifty-seven to
seventy-one months. Because Verde-Gutierez’s sentence is within the
applicable guideline range and the statutory maximum penalty for his
UNITED STATES v. VERDE-GUTIEREZ 3
crime, this court lacks authority to review his sentence. See United
States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990).
Third, our review of the record reveals that Verde-Gutierez’s inef-
fective assistance of counsel claim is not cognizable on direct appeal.
Claims of ineffective assistance of counsel are only cognizable on
direct appeal where the record conclusively establishes ineffective
assistance. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Rather, to allow for adequate development of the record, Verde-
Gutierez must bring these claims in a motion under 28 U.S.C.A.
§ 2255 (West Supp. 2000). United States v. Hoyle, 33 F.3d 415, 418
(4th Cir. 1994).
Finally, we find that Verde-Gutierez’s claim that he was errone-
ously denied an opportunity to provide substantial assistance to the
Government in exchange for a reduced sentence is without merit.
Because Verde-Gutierez did not raise this claim at sentencing, this
court reviews for plain error. See United States v. Olano, 507 U.S.
725, 732-34 (1993). Verde-Gutierez, however, is not automatically
entitled to an opportunity to provide such assistance. The information
that Verde-Gutierez sought to provide did not directly relate to the
drug conspiracy case at hand. Further, even if Verde-Gutierez had
provided substantial assistance to the Government, the Government’s
refusal to move for a departure would not be reviewable in this court
absent a showing that its decision was based on an unconstitutional
motive such as race. See Wade v. United States, 504 U.S. 181, 185-
86 (1992); United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994).
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
Verde-Gutierez’s conviction and sentence. This 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