                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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