UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4476
MARINO JIMENEZ,
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-99-113)
Submitted: March 22, 2001
Decided: March 29, 2001
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Haakon Thorsen, Charlotte, North Carolina, for Appellant. Douglas
Scott Broyles, OFFICE OF THE 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Unpublished opinions are not binding precedent in this circuit.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. JIMENEZ
OPINION
PER CURIAM:
Marino Jimenez appeals his convictions and the 135-month sen-
tence imposed after he pled guilty to two counts of possessing with
intent to distribute crack cocaine, in violation of 21 U.S.C.A. § 841(a)
(West 1999). Jimenez’ attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), raising two issues but stat-
ing that, in his view, there are no meritorious grounds for appeal.
Jimenez was informed of his right to file a pro se supplemental brief
but has failed to do so. After a thorough review of the record, we
affirm.
Jimenez’ counsel first questions whether counsel provided ineffec-
tive assistance in the district court but alleges no specific instances of
potential ineffectiveness. Claims of ineffective assistance of counsel,
however, generally are not cognizable on direct appeal unless error is
apparent from the record, which is not the case here. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing standard
and noting that ineffective assistance of counsel claims generally
should be raised by motion under 28 U.S.C. § 2255), cert. denied, 528
U.S. 1096 (2000).
Jimenez’ counsel also asserts that the Government engaged in pro-
secutorial misconduct by failing to file a motion for substantial assis-
tance under U.S. Sentencing Guidelines Manual, § 5K1.1, p.s. (1998).
Because Jimenez did not raise this issue in the district court, our
review is only for plain error. United States v. Wells, 163 F.3d 889,
900 (4th Cir. 1998) (stating standard of review), cert. denied, 528
U.S. 841 (1999). We find no plain error given that the Government
was not obligated to make the motion. United States v. Wallace, 22
F.3d 84, 87 (4th Cir. 1994) (finding no binding obligation when gov-
ernment reserved right to determine whether substantial assistance
provided).
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. We therefore affirm Jimenez’
convictions and sentence and deny Jimenez’ motion to substitute
attorney. This court requires that counsel inform his client, in writing,
UNITED STATES v. JIMENEZ 3
of his right to petition the Supreme Court of the United States for fur-
ther 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED