United States v. Jimenez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4323
INOCENTE ANTUNEZ JIMENEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CR-01-31-H)
Submitted: September 30, 2002
Decided: October 10, 2002
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
George Mason Oliver, STUBBS & PERDUE, P.A., New Bern, North
Carolina, for Appellant. Winnie Jordan Reaves, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JIMENEZ
OPINION
PER CURIAM:
Inocente Antunez Jimenez appeals his convictions and 120-month
sentence, following his guilty plea pursuant to a plea agreement, for
distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2000); and aiding and abetting, in violation of 18 U.S.C. § 2 (2000).
After an extensive plea hearing, his guilty plea was accepted and
entered on October 16, 2001. Jimenez’s counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there were
no meritorious grounds for appeal. Jimenez was informed of his right
to file a pro se supplemental brief but has not done so.
Counsel asserts prosecutorial misconduct and ineffective assistance
of counsel arguments, but concedes each claim lacks merit. We also
note that Jimenez waived his right to appeal his sentence in his plea
agreement except for any upward departure at sentencing or claims of
ineffective assistance of counsel or prosecutorial misconduct.
To the extent that Jimenez asserts prosecutorial misconduct, his
claims are unsupported by the record. Furthermore, ineffective assis-
tance 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 on appeal does not conclusively establish counsel
was ineffective, these claims should be asserted in a 28 U.S.C. § 2255(2000) motion. See 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
Jimenez’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 petition 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 argument because the
UNITED STATES v. JIMENEZ 3
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED