UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE RAMON ALMONTE, a/k/a Rana, a/k/a Esteban,
a/k/a Jose B. Almonte,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:03-cr-00231)
Submitted: December 21, 2006 Decided: December 28, 2006
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
E. Fitzgerald Parnell, III, POYNER & SPRUILL LLP, Charlotte, North
Carolina, for Appellant. Kevin Zolot, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Jose Ramon Almonte
pled guilty to conspiracy to possess with intent to distribute five
kilograms or more of cocaine and 100 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). The
district court sentenced Almonte to 121 months in prison, one month
above the mandatory minimum sentence. Almonte timely appealed.
Almonte’s appellate counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there are
no meritorious issues for appeal, but asserting two claims. First,
counsel questions whether Almonte’s trial counsel was ineffective
for permitting him to enter a plea agreement under which he waived
his right to appeal his sentence. Such claims generally must be
raised in the district court in a motion under 28 U.S.C. § 2255
(2000), unless the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Because the record does not conclusively show that counsel
was ineffective, we decline to address this claim at this time.
Almonte’s counsel also asserts that the mandatory minimum
sentence required by 21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp.
2006) is unconstitutional. Although the Supreme Court has
recognized criticism of mandatory minimum sentences, it has not
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found such sentences to be unconstitutional. Harris v. United
States, 536 U.S. 545, 568-69 (2002).
We have reviewed the issues raised in Almonte’s pro se
supplemental briefs and find them to be meritless. In accordance
with Anders, we have reviewed the record in this case and have
found no meritorious issues for appeal. We therefore affirm
Almonte’s conviction and sentence. This court requires that
counsel inform Almonte, in writing, of the right to petition the
Supreme Court of the United States for further review. If Almonte
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 Almonte.
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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