UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4308

ORVILLE ANTHONY JONES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CR-97-160)

Submitted: January 19, 1999

Decided: March 9, 1999

Before WIDENER and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Melvin J. Radin, Norfolk, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Kevin M. Comstock, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Orville Anthony Jones pled guilty to possession with intent to dis-
tribute cocaine base, also known as "crack," in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(iii) (1994) and 18 U.S.C. § 2 (1994). Jones
appeals from the district court judgment sentencing him to 120
months' imprisonment. His attorney filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), addressing whether the
district court erred in denying downward departure to Jones. Jones
filed a pro se supplemental brief asserting that: (1) he received inef-
fective assistance of counsel; (2) Congress exceeded its authority by
setting up a separate punishment for cocaine base; (3) his guilty plea
was not knowing or voluntary due to the ineffective assistance of
counsel; and (4) he did not knowingly plead guilty to possession of
crack cocaine as opposed to powder cocaine.

In 1997, Jones was a passenger in an automobile that was stopped
by a Virginia police officer due to speeding and erratic driving. Fol-
lowing a request for permission to search the vehicle, police recov-
ered marijuana from the back seat. After seeing Jones throw
something under the police vehicle, police searched and found a bag
containing cocaine. Jones was indicted and charged with: (1) inter-
state travel to facilitate unlawful activity; (2) simple possession of
marijuana; and (3) possession with intent to distribute cocaine base.

Jones executed a plea agreement in which he acknowledged that
the offense carried a mandatory minimum term of ten years' impris-
onment and that the sentence would be imposed in accordance with
the United States Sentencing Guidelines and Policy Statements. The
agreement waived the right to appeal on any grounds whatever any
sentence within the maximum allowed. During a hearing, Jones was
fully apprised of the effect of executing the agreement. The court dis-
cussed the nature of the charges against Jones, the applicable penal-
ties he faced, and the rights Jones forfeited by virtue of his plea. Jones
also heard the Government recite a summation of the facts of the case,
including that Jones threw crack cocaine under the police car. Jones
agreed that the facts as presented by the Government were true.

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At sentencing, Jones requested a downward departure based upon
alleged overstatement of his criminal history and because he was sub-
ject to deportation following the completion of his sentence. The dis-
trict court determined that Jones' criminal history was not overstated.
The court did not state whether it considered the probability that
Jones would be deported following his release. Jones received a 120
month sentence.

A waiver of appeal provision in a valid plea agreement is enforce-
able if it is the result of a knowing and intelligent decision to relin-
quish the right to appeal. See United States v. Attar, 38 F.3d 727, 731
(4th Cir. 1994); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). However, waiver of appeal may not be enforced when the
defendant asserts ineffectiveness of counsel during the guilty plea.
See United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993).

Jones argues in his pro se brief that his guilty plea was not knowing
or voluntary because he received ineffective assistance of counsel.
Jones asserts that his attorney failed to argue that under 21 U.S.C.
§ 841(b)(1)(C), no minimum sentence is required for possession of
cocaine with intent to distribute. In addition, Jones asserts that coun-
sel failed to object to the court's characterization of the cocaine at
issue as crack cocaine instead of powder cocaine and that he did not
knowingly plead guilty to possession of crack cocaine. These claims
are without merit.

Jones asserts his attorney should have argued for sentencing under
the provisions of § 841(b)(1)(C), which does not specify a minimum
sentence, even though the passage states that it applies to cases not
provided for in subparagraphs (A), (B) and (D). Jones was charged
with possession of an amount of cocaine base described under
§ 841(b)(1)(B). Jones mistakenly believes that§ 841(b)(1)(C) is an
independent provision under which he could have been sentenced and
under which the Guidelines would not apply. Thus, Jones did not
receive ineffective assistance of counsel.

As to whether Jones knowingly pled guilty to possession of crack
cocaine, the record is replete with statements that Jones was charged
with possession of crack cocaine and that his guilty plea was to the
possession of crack cocaine. Jones agreed that the facts as read by the

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Government in court prior to his guilty plea were true, including that
the cocaine recovered from Jones was crack cocaine. The words
"crack" or "crack cocaine" appear in the criminal complaint, the
indictment, the court order committing Jones to the custody of the
Attorney General, and the arrest warrant. Jones has presented no evi-
dence that there was confusion about the type of cocaine involved in
this case, no evidence supporting his claim that his plea was not
knowing and voluntary, and no evidence that counsel made any error
based on a mischaracterization of the cocaine. Jones' guilty plea and
his waiver of his appellate rights were the result of a knowing and
intelligent decision.

The last two issues, that Congress exceeded its power by creating
a separate penalty for offenses related to crack cocaine as opposed to
powder cocaine, and that the district court erred in refusing to depart
from the guidelines, are foreclosed by Jones' voluntary waiver of his
right to challenge his sentence directly or collaterally in his plea
agreement. See Wiggins, 905 F.2d at 53.

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Jones' con-
viction and sentence. This Court requires that counsel inform his cli-
ent 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 represen-
tation. See Local Rule 46(d). Counsel's motion must state that a copy
thereof was served on the client. See id.

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

AFFIRMED

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