United States v. Zuniga-Rios , 193 F. App'x 195 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4150
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE LUIS ZUNIGA-RIOS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:03-cr-00004-6)
Submitted: July 25, 2006 Decided: August 1, 2006
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carol Ann Bauer, Morganton, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Luis Zuniga-Rios pled guilty pursuant to a written
plea agreement to conspiracy to distribute five kilograms or more
of a mixture and substance containing a detectable amount of
cocaine and fifty grams or more of a mixture and substance
containing a detectable amount of cocaine base, in violation of 21
U.S.C. §§ 841, 846 (2000) (Count 1), and possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1), 18 U.S.C. § 2 (2000) (Count 5). The district
court sentenced Zuniga-Rios to 120 months’ imprisonment on Count 1
and 60 months’ imprisonment on Count 5, to be served consecutively,
for a total of 180 months’ imprisonment, five years of supervised
release on each of Counts 1 and 5, to be served concurrently, and
ordered payment of a $200 statutory assessment.* Zuniga-Rios’
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious grounds for
appeal, but questioning whether the Government breached the terms
of the plea agreement when it failed to motion, pursuant to USSG
*
The probation officer calculated a sentencing guideline range
applicable to Zuniga-Rios of 87 to 108 months’ imprisonment, plus
a mandatory consecutive sentence of not less than five years on the
firearm conviction, founded on a total offense level of 29 and a
criminal history category of I. However, the statutory mandatory
minimum sentence of imprisonment for a violation of 21 U.S.C.
§ 841(b)(1)(A) is 120 months, plus a mandatory consecutive sentence
of not less than 5 years for a violation of 18 U.S.C. § 924(c).
U.S. Sentencing Guidelines Manual (“USSG”), §§ 5G1.1(b), 2K2.4,
Chapter 5, Part A (2004).
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§ 5K1.1, for imposition of a sentence below the applicable
sentencing guidelines, and pursuant to 18 U.S.C.A. § 3553(e) (West
2000 & Supp. 2005), to impose a sentence below the statutory
mandatory minimum, based on Zuniga-Rios’ substantial assistance.
Zuniga-Rios was given an opportunity to file a supplemental pro se
brief, but has failed to do so.
As a preliminary matter, by the explicit terms of the
plea agreement he entered into with the Government, Zuniga-Rios
waived his right to appeal his conviction or his sentence, save his
right to raise a claim of prosecutorial misconduct or ineffective
assistance of counsel. The record reflects that Zuniga-Rios
knowingly and voluntarily agreed to this provision. To the extent
his assertion on appeal is a challenge to his sentence, we decline
to consider it. See United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005). To the extent his challenge is based on prosecutorial
misconduct, we find no merit to his claim, as we find no
unconstitutional motive in the Government’s refusal to file a
substantial assistance motion where, as here, the refusal is based
on the defendant’s wilful absconding and attendant unavailability
to testify at trial. See Wade v. United States, 504 U.S. 181, 185-
86 (1992).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Zuniga-Rios’ conviction and sentence.
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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 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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