United States v. Nguyen

149 F. App'x 224

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-4852

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

THANH HUU NGUYEN,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (CR-02-271)

Submitted: September 27, 2005 Decided: September 29, 2005

Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Anthony D. Martin, ANTHONY D. MARTIN, P.C., Greenbelt, Maryland, for Appellant. Thomas M. DiBiagio, United States Attorney, Andrew G. W. Norman, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Thanh Huu Nguyen appeals the district court’s judgment

sentencing him to 109 months in prison following his guilty plea,

pursuant to a plea agreement,* to one count of conspiracy to

distribute and possess with intent to distribute in excess of 100

kilograms of marijuana in violation of 21 U.S.C. § 846 (2000). In

his appeal, filed pursuant to Anders v. California, 386 U.S. 738

(1967), counsel for Nguyen asserts there are no non-frivolous

issues for appeal. Although concluding that such allegations lack

merit, counsel asserts that Nguyen received ineffective assistance

of counsel. Nguyen also filed a pro se supplemental brief

asserting that his sentence violated Blakely v. Washington, 542

U.S. 296 (2004). Because our review of the record discloses no

reversible error, we affirm Nguyen’s conviction and sentence.

A claim of ineffective assistance of counsel is

ordinarily not cognizable on direct review unless counsel’s

ineffectiveness is conclusively established on the record. United

States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998). We find the

evidence does not support such a finding. We further find that

* Nguyen’s plea agreement contained an appellate waiver in which he,

waive[d] all rights conferred by 18 U.S.C. § 3742 to appeal whatever sentence is imposed, including any issues that relate to the establishment of the guideline range, reserving only the right to appeal from an upward or downward departure from the guideline range established at sentencing.

- 2 - Nguyen was advised of the nature of the charge against him, the

potential punishment, and the rights he was waiving by entering a

plea of guilty, and he knowingly and intelligently waived those

rights and pled guilty. Thus, Nguyen’s appellate waiver forecloses

any argument that his sentence, issued under the mandatory

guidelines system, was unconstitutional. See United States v.

Blick, 408 F.3d 162 (4th Cir. 2005)

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Nguyen’s conviction and sentence. We

deny both Nguyen’s motion to have counsel relieved and 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 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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