UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4831

NATHAN PELZER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-96-163)

Submitted: July 14, 1998

Decided: August 3, 1998

Before WILKINS and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Frank D. Whitney, Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Nathan Pelzer pleaded guilty to conspiring to possess with intent
to distribute and to distribute cocaine base in violation of 21 U.S.C.
§ 846 (1994) and was sentenced to 168 months' imprisonment. On
appeal, Pelzer's attorney discusses whether Pelzer was denied effec-
tive assistance of counsel and whether the Assistant U.S. Attorney
committed prosecutorial misconduct by failing to move for a down-
ward departure. However, counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal. Pelzer did not file a pro se supplemental
brief. We affirm.

Police arrested Pelzer and another individual upon seizing 168.5
grams of crack cocaine and two pistols found in their possession. A
federal grand jury indicted Pelzer on the following counts: (1) drug
conspiracy in violation of 21 U.S.C. § 846 (1994); (2) possession with
intent to distribute and to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1); and using and carrying a firearm and aiding and abetting
the same during a drug trafficking offense in violation of 18 U.S.C.
§ 924(c) (1994).1 After Pelzer failed to appear for his calendar call
and jury selection, a grand jury returned a superseding indictment
against him charging him with two additional counts of using and car-
rying a firearm during and in furtherance of a drug trafficking offense
in violation of 18 U.S.C. § 924(c) and for failing to appear for calen-
dar call in violation of 18 U.S.C. § 3146(a) (1994). Pelzer subse-
quently entered a straight-up plea to all five counts of the superseding
indictment, and requested the appointment of new counsel, to which
the court agreed.

After newly appointed counsel's attempts to renegotiate the plea,
the Government agreed to allow the striking of the straight up plea
and to allow Pelzer to plead guilty to a single count of drug conspir-
_________________________________________________________________
1 Although his co-conspirator agreed to plead guilty to the drug con-
spiracy count in exchange for the Government dropping the other
charges against him, Pelzer at that time did not respond to a similar offer
made to him.

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acy, the same plea entered into by his co-conspirator. The terms of the
plea agreement included a waiver of the right to appeal except as to
claims of prosecutorial misconduct and ineffective assistance of coun-
sel. After conducting a thorough Fed. R. Crim. P. 11 colloquy and
finding that Pelzer knowingly, and voluntarily entered his plea, the
court accepted the plea agreement, and sentenced Pelzer in accor-
dance with the Sentencing Guidelines to 168 months' imprisonment.

Pelzer's first claim, that he was subject to prosecutorial misconduct
because the United States Attorney failed to move for a downward
departure based on substantial assistance under USSG§ 5K1.1,2 is
without merit. Although couched in terms of a prosecutorial miscon-
duct claim, Pelzer's argument is essentially an attack on the Govern-
ment's decision not to move for a downward departure, a claim
explicitly waived in the plea agreement, to which Pelzer entered into
voluntarily. The plea agreement specifically states:"Any determina-
tion that the defendant has failed to provide substantial assistance . . .
is within the sole discretion of the United States, and the defendant
waives all objections and rights of appeal or collateral attack of such
a determination." (J.A. at 48).

The district court conducted a thorough Fed. R. Crim. P. 11 collo-
quy. Pelzer acknowledged that he signed the plea agreement, under-
stood his rights and the consequences of the plea, consulted with
counsel, and was freely and voluntarily pleading guilty and waiving
his right to appeal. The plea agreement is valid because Pelzer made
an intelligent and informed decision when he voluntarily pled guilty.
See North Carolina v. Alford, 400 U.S. 25, 31 (1970). Further,
because the court fully questioned Pelzer regarding waiving his
appeal rights during the Rule 11 hearing, the waiver is valid and
enforceable. See United States v. Wessells, 936 F.2d 165, 167-68 (4th
Cir. 1991). In light of the above, we find that Pelzer waived this claim.3
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2 U.S. Sentencing Guidelines Manual § 5K1.1 (Nov. 1997).
3 Pelzer's argument that the Government breached the plea agreement
by failing to move for a downward departure based on substantial assis-
tance is similarly without merit because the plea agreement provides that
that determination is within the sole discretion of the Government. See
United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994).

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Pelzer next claims that he was denied effective assistance of coun-
sel. Such a claim should be raised by motion under 28 U.S.C. § 2255
(West 1994 & Supp. 1998), in the district court and not on direct
appeal unless it "conclusively appears" from the record that defense
counsel did not provide effective representation. See United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). The record does not
conclusively show that any of Pelzer's attorneys were ineffective.

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Pelzer's
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 repre-
sentation. Counsel's motion must state that a copy thereof was served
on the client.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court, and
oral argument would not aid the decisional process.

AFFIRMED

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