                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4908


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ALBERT ESPINOZA, a/k/a Bert,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City.       Martin K.
Reidinger, District Judge. (2:09-cr-00029-MR-1)


Submitted:   October 4, 2011                 Decided:    December 12, 2011


Before TRAXLER,   Chief   Judge,    and   GREGORY       and   WYNN,   Circuit
Judges.


Dismissed by unpublished per curiam opinion.


L. Aron Pena, Edinburg, Texas, for Appellant. Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Albert Espinoza pled guilty to conspiracy to possess

with intent to distribute at least 1000 kilograms of marijuana,

in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (2006).                                   In the

plea     agreement,      Espinoza          agreed        to     cooperate        by    providing

truthful    testimony         and    information             and   waived     all     rights    to

contest    his     conviction         and    sentence,             except    for      claims    of

ineffective assistance of counsel or prosecutorial misconduct.

The plea agreement further provided that the Government had the

sole     discretion        to        determine       whether              Espinoza      provided

substantial       assistance         warranting          a     motion      for    a    departure

pursuant    to    U.S.    Sentencing         Guidelines            Manual     (USSG)     § 5K1.1

(2009).        Espinoza       also    waived       all        objections      and     rights    to

appeal    or     collaterally         attack       the       Government’s        determination

that he failed to provide substantial information or knowingly

provided false information.

               Prior to sentencing, the Government filed a motion for

a     downward     departure         pursuant        to        USSG       § 5K1.1     based     on

Espinoza’s        substantial             assistance.                 However,         following

Espinoza’s        testimony          at      sentencing             and     based       on     its

determination       that       he     made     false          statements         therein,      the

Government withdrew the motion and sought a two-level increase

for    obstruction       of     justice      under        USSG        § 3C1.1.         The    plea

agreement stated that, regardless of any substantial assistance,

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“the United States will not move for a reduction in sentence and

may    seek       an     increased         sentence       if    the     defendant         knowingly

furnishes materially false information.”                                The sentencing court

denied the increase for obstruction of justice, did not consider

the withdrawn USSG § 5K1.1 motion, and sentenced Espinoza within

the    advisory         Guidelines            sentencing       range     to    210     months   of

imprisonment.

              On        appeal,          Espinoza        argues       that     the     Government

breached      the       plea       agreement      by     withdrawing         its    USSG    § 5K1.1

motion      and     that          counsel      provided     ineffective            assistance   at

sentencing.            In addition, he asserts four claims of sentencing

error by the district court.                      In response, the Government argues

that Espinoza validly waived the right to appeal his conviction

and sentence, that it did not breach the plea agreement, and

that   Espinoza’s             claim      of    ineffective        assistance         of    counsel,

although excepted from the appellate waiver, is not supported by

the record and therefore is not cognizable on direct appeal.                                    We

dismiss.

              Espinoza does not challenge the validity of his plea

or    the   waiver           of    his    right     to    appeal.            Instead,      Espinoza

contends that the appeal waiver is unenforceable because the

Government breached the plea agreement containing the waiver by

withdrawing            its    USSG       § 5K1.1    motion        and    seeking       sentencing



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enhancements.       United States v. Cohen, 459 F.3d 490, 495 (4th

Cir. 2006).

             Our review of the record and the plain language of the

plea agreement lead us to conclude that the Government acted

within its discretion and did not breach the plea agreement.

Wade v. United States, 504 U.S. 181, 184-87 (1992) (in absence

of    cooperation     agreement,    Government’s          decision     regarding

§ 5K1.1 motion is reviewed to determine whether it was based on

an unconstitutional motive); United States v. Hartwell, 448 F.3d

707, 718 (4th Cir. 2006).           Because there was no breach, the

waiver of appeal is valid and enforceable as to all substantive

sentencing issues asserted by Espinoza.               Accordingly, we dismiss

that portion of Espinoza’s appeal.

             Moreover,   we     find       no    conclusive        evidence     of

ineffective     assistance    of   counsel      and    therefore     decline    to

address Espinoza’s claim of ineffective assistance of counsel at

this time.      See, e.g., United States v. Benton, 523 F.3d 424,

435   (4th    Cir.    2008)   (“Ineffective           assistance     claims    are

generally not cognizable on direct appeal, however, unless it

conclusively appears from the record that defense counsel did

not provide effective representation.” (internal quotation marks

and citation omitted)); United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999) (“A claim of ineffective assistance of

counsel should be raised by a habeas corpus motion under 28

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U.S.C. § 2255 in the district court and not on direct appeal,

unless    it    conclusively     appears    from    the    record    that    defense

counsel    did    not     provide   effective      representation.”        (internal

quotation marks and citation omitted)).

               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.



                                                                           DISMISSED




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