UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4327
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL SANCHEZ, a/k/a Danny Myrick,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (CR-03-184)
Submitted: October 19, 2005 Decided: November 9, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,
Supervisory Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, William D. Muhr, Assistant United States Attorneys, Karen
Lynn Peaden, Third-Year Law Student, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel Sanchez appeals his conviction and 180-month
sentence imposed following a guilty plea to illegal possession of
a firearm after being convicted of a felony, in violation of 18
U.S.C. § 922(g)(1) (2000). Sanchez’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
a sentencing issue but stating that he finds no meritorious grounds
for appeal. The Government filed an answering brief. Sanchez
filed two pro se supplemental briefs raising several additional
issues. Finding no reversible error, we affirm.
Both in the Anders brief, and in Sanchez’s pro se
supplemental brief, Sanchez asserts that the district court erred
by failing to grant him a departure based upon diminished capacity.
A district court’s decision not to depart from the sentencing
guidelines is not subject to appellate review unless the refusal to
depart is based on the mistaken belief that the court lacked the
authority to depart. See United States v. Bayerle, 898 F.2d 28,
30-31 (4th Cir. 1990). Here, the district court recognized that it
had the authority to depart, but chose to exercise its discretion
against any such departure. The court’s decision therefore is not
subject to appellate review. Id.
In his pro se supplemental brief, Sanchez contends that
his counsel coerced him into pleading guilty by telling him “you’d
have to be crazy if you don’t plead guilty.” However, a close
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review of the Rule 11 colloquy reveals that Sanchez informed the
court that he was pleading guilty of his own free will, and not as
the result of any threats or promises. Because Sanchez is bound by
these assurances, this claim must also fail. See Little v.
Allsbrook, 731 F.2d 238, 239-40 n.2 (4th Cir. 1984).
Next, Sanchez asserts that he was erroneously sentenced
as a career offender based on inaccuracies in the PSR. Absent
plain error, Sanchez may not seek review of his sentence when both
he and his counsel failed to object to the presentence report at
the time of the sentencing hearing. See United States v. Grubb, 11
F.3d 426, 440-41 (4th Cir. 1993). We find no plain error in this
respect.
Sanchez also raises several instances of ineffective
assistance of trial counsel, including failure to attack the
credibility of the police report; failure to object to various
inaccuracies in the PSR; and failure to assert a state of mind
defense. We decline to address these claims as they are more
properly brought on collateral review. 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 (2000)).
Next, relying on the reasoning set forth in United States
v. Lopez, 514 U.S. 549 (1995), Sanchez contends that section 922(g)
violates the Commerce Clause. However, this court has rejected
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that argument. See United States v. Wells, 98 F.3d 808, 811 (4th
Cir. 1996).
Sanchez also contends that the district court plainly
erred in relying on the predicate offenses to sentence him to a
statutory mandatory minimum sentence because the offenses were not
charged in the indictment, and generally challenges the continuing
viability of Almendarez-Torres v. United States, 523 U.S. 224, 233-
35 (1998). In Almendarez-Torres, the Supreme Court held that the
government need not allege in its indictment and need not prove
beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence. Id. Accordingly, Sanchez’s indictment did not violate
his constitutional rights. Second, although the opinion in
Apprendi v. New Jersey, 530 U.S. 466 (2000), expressed some
uncertainty regarding the future vitality of Almendarez-Torres,
this court has subsequently confirmed that Almendarez-Torres was
not overruled by Apprendi and remains the law. See United States
v. Cheek, 415 F.3d 349 (4th Cir. 2005) (holding that Sixth
Amendment not violated when sentence enhanced based on prior
convictions that were not charged in indictment or admitted by
defendant). Thus, Sanchez is not entitled to relief on these
claims.
Finally, Sanchez raises a host of sentencing issues.
After careful review of the record, we conclude that each of
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Sanchez’s claims surrounding the calculation of his sentence are
without merit.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Sanchez’s conviction and sentence and
deny counsel’s motion to withdraw. 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 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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