UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis ZUNIGA-RIOS, Defendant-Appellant, 193 F. App'x 195

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, 87 S.Ct. 1396, 18 L.Ed.2d 493 (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 § 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. ZunigaRios 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, 112 S.Ct. 1840, 118 L.Ed.2d 524 (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.

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.

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 mandatoiy 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).