                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4754



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


FELIPE RICARDO HERRERA-BARCENAS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-02-94)


Submitted:   June 27, 2005                 Decided:   July 19, 2005


Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Gretchen C. F. Shappert, Interim United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Felipe     Ricardo        Herrera-Barcenas      appeals     from     his

convictions and 120-month sentence entered after his guilty plea to

conspiracy    to    possess     with    intent   to    distribute     cocaine    and

marijuana and use of a firearm during a drug trafficking crime.                   On

appeal, Herrera-Barcenas’ attorney has filed a brief in accordance

with   Anders    v.   California,       386   U.S.    738   (1967),   finding     no

meritorious issues for appeal. Herrera-Barcenas has filed a pro se

supplemental       brief,     raising     several      claims   of    ineffective

assistance of counsel.

            The Government has filed a motion to dismiss the appeal

based on the appellate waiver in the plea agreement.                  Although we

find that the waiver was valid, it expressly exempted appellate

claims based on ineffective assistance of counsel and prosecutorial

misconduct.      Because Herrera-Barcenas seeks to raise claims of

ineffective assistance, we deny the motion to dismiss.

            An     allegation    of    ineffective     assistance     should     not

proceed on direct appeal unless it appears conclusively from the

record    that     counsel’s    performance      was    ineffective.       United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                       Here,

there is no evidence in the record supporting Herrera-Barcenas’

claims.   Nonetheless, if Herrera-Barcenas possesses other evidence

on these issues, he is free to assert his claims in a 28 U.S.C.

§ 2255 (2000) motion.


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            In accordance with Anders, we have reviewed the entire

record in this case, and we have found no meritorious issues for

appeal.     We therefore affirm Herrera-Barcenas’ convictions and

sentence.    This court requires that counsel inform her 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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