UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4754
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FELIPE RICARDO HERRERA-BARCENAS,
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-02-94)
Submitted: June 27, 2005 Decided: July 19, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Gretchen C. F. Shappert, Interim United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Felipe Ricardo Herrera-Barcenas appeals from his
convictions and 120-month sentence entered after his guilty plea to
conspiracy to possess with intent to distribute cocaine and
marijuana and use of a firearm during a drug trafficking crime. On
appeal, Herrera-Barcenas’ attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), finding no
meritorious issues for appeal. Herrera-Barcenas has filed a pro se
supplemental brief, raising several claims of ineffective
assistance of counsel.
The Government has filed a motion to dismiss the appeal
based on the appellate waiver in the plea agreement. Although we
find that the waiver was valid, it expressly exempted appellate
claims based on ineffective assistance of counsel and prosecutorial
misconduct. Because Herrera-Barcenas seeks to raise claims of
ineffective assistance, we deny the motion to dismiss.
An allegation of ineffective assistance should not
proceed on direct appeal unless it appears conclusively from the
record that counsel’s performance was ineffective. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Here,
there is no evidence in the record supporting Herrera-Barcenas’
claims. Nonetheless, if Herrera-Barcenas possesses other evidence
on these issues, he is free to assert his claims in a 28 U.S.C.
§ 2255 (2000) motion.
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In accordance with Anders, we have reviewed the entire
record in this case, and we have found no meritorious issues for
appeal. We therefore affirm Herrera-Barcenas’ convictions and
sentence. This court requires that counsel inform her 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 facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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