                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4327



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DANIEL SANCHEZ, a/k/a Danny Myrick,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.   Robert G. Doumar, Senior
District Judge. (CR-03-184)


Submitted:   October 19, 2005             Decided:   November 9, 2005


Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,
Supervisory Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, William D. Muhr, Assistant United States Attorneys, Karen
Lynn Peaden, Third-Year Law Student, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Daniel     Sanchez   appeals    his   conviction    and   180-month

sentence imposed following a guilty plea to illegal possession of

a firearm after being convicted of a felony, in violation of 18

U.S.C. § 922(g)(1) (2000). Sanchez’s attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), raising

a sentencing issue but stating that he finds no meritorious grounds

for appeal.   The Government filed an answering brief.                  Sanchez

filed two pro se supplemental briefs raising several additional

issues.   Finding no reversible error, we affirm.

          Both   in    the    Anders    brief,   and   in   Sanchez’s   pro   se

supplemental brief, Sanchez asserts that the district court erred

by failing to grant him a departure based upon diminished capacity.

A district court’s decision not to depart from the sentencing

guidelines is not subject to appellate review unless the refusal to

depart is based on the mistaken belief that the court lacked the

authority to depart.         See United States v. Bayerle, 898 F.2d 28,

30-31 (4th Cir. 1990). Here, the district court recognized that it

had the authority to depart, but chose to exercise its discretion

against any such departure.        The court’s decision therefore is not

subject to appellate review.        Id.

           In his pro se supplemental brief, Sanchez contends that

his counsel coerced him into pleading guilty by telling him “you’d

have to be crazy if you don’t plead guilty.”                However, a close


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review of the Rule 11 colloquy reveals that Sanchez informed the

court that he was pleading guilty of his own free will, and not as

the result of any threats or promises.     Because Sanchez is bound by

these assurances, this claim must also fail.           See Little v.

Allsbrook, 731 F.2d 238, 239-40 n.2 (4th Cir. 1984).

           Next, Sanchez asserts that he was erroneously sentenced

as a career offender based on inaccuracies in the PSR.          Absent

plain error, Sanchez may not seek review of his sentence when both

he and his counsel failed to object to the presentence report at

the time of the sentencing hearing.     See United States v. Grubb, 11

F.3d 426, 440-41 (4th Cir. 1993).      We find no plain error in this

respect.

           Sanchez also raises several instances of ineffective

assistance of trial counsel, including failure to attack the

credibility of the police report; failure to object to various

inaccuracies in the PSR; and failure to assert a state of mind

defense.   We decline to address these claims as they are more

properly   brought   on   collateral    review.    United   States   v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing standard

and noting that ineffective assistance of counsel claims generally

should be raised by motion under 28 U.S.C. § 2255 (2000)).

           Next, relying on the reasoning set forth in United States

v. Lopez, 514 U.S. 549 (1995), Sanchez contends that section 922(g)

violates the Commerce Clause.     However, this court has rejected


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that argument.        See United States v. Wells, 98 F.3d 808, 811 (4th

Cir. 1996).

               Sanchez also contends that the district court plainly

erred in relying on the predicate offenses to sentence him to a

statutory mandatory minimum sentence because the offenses were not

charged in the indictment, and generally challenges the continuing

viability of Almendarez-Torres v. United States, 523 U.S. 224, 233-

35 (1998).      In Almendarez-Torres, the Supreme Court held that the

government need not allege in its indictment and need not prove

beyond reasonable doubt that a defendant had prior convictions for

a district court to use those convictions for purposes of enhancing

a sentence. Id. Accordingly, Sanchez’s indictment did not violate

his    constitutional        rights.       Second,   although      the   opinion   in

Apprendi   v.     New   Jersey,     530    U.S.    466   (2000),   expressed     some

uncertainty regarding the future vitality of Almendarez-Torres,

this court has subsequently confirmed that Almendarez-Torres was

not overruled by Apprendi and remains the law.                  See United States

v.    Cheek,    415   F.3d    349   (4th    Cir.   2005)   (holding      that   Sixth

Amendment not violated when sentence enhanced based on prior

convictions that were not charged in indictment or admitted by

defendant).       Thus, Sanchez is not entitled to relief on these

claims.

               Finally, Sanchez raises a host of sentencing issues.

After careful review of the record, we conclude that each of


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Sanchez’s claims surrounding the calculation of his sentence are

without merit.

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   We therefore affirm Sanchez’s conviction and sentence and

deny counsel’s motion to withdraw.      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 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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