UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4568

JULIUS DILLARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-97-19)

Submitted: March 3, 1998

Decided: March 27, 1998

Before WIDENER, HAMILTON, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William W. Plyler, MCMILLAN, SMITH & PLYLER, Raleigh,
North Carolina, for Appellant. J. Frank Bradsher, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Julius Dillard appeals his conviction, entered upon a written plea
agreement, of possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g)(1) (1994). Dillard's attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), claiming
that the district court erred as a matter of law in concluding that it
could not depart downward from the Sentencing Guidelines range to
reward Dillard for his substantial assistance absent a government
motion pursuant to USSG § 5K1.1 (1996) or 18 U.S.C.A. § 3553(e)
(West Supp. 1997), but concluding that there are no meritorious
grounds for appeal. As part of his written plea agreement, Dillard
expressly waived his appellate rights, except for the right to appeal
based on ineffective assistance of counsel and prosecutorial miscon-
duct not known to Dillard at the time of his guilty plea. Dillard was
notified of his right to file an additional brief, which he did, claiming
ineffective assistance of counsel. In accordance with the requirements
of Anders, we have examined the entire record and find no meritori-
ous issues for appeal.

Dillard's claim, by counsel, that the district court erred in conclud-
ing that it could not depart downward absent a government motion is
without merit. It is well settled that, absent a government motion
under either section 3553(e) or USSG § 5K1.1, the district court can-
not consider whether a defendant is entitled to a downward departure
from the Sentencing Guidelines range based on substantial assistance.
See United States v. Maddox, 48 F.3d 791, 795 (4th Cir. 1995);
United States v. Wade, 936 F.2d 169, 171 (4th Cir. 1991), aff'd, 504
U.S. 181, 184-87 (1992) (establishing two exceptions not applicable
here).

Dillard's real complaint appears to be with the government's
refusal to make the substantial assistance motion on Dillard's behalf.
Pursuant to the plea agreement, the government was required to make
known to the district court at sentencing the extent of Dillard's coop-
eration with law enforcement agents. The agreement did not contain
a promise by the government to make a motion for a downward
departure. The government later refused to file a motion for down-

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ward departure on behalf of Dillard because of certain transgressions
he committed following his agreement to cooperate with authorities.
The facts are undisputed that while Dillard did cooperate with law
enforcement officials by making recorded telephone calls to his drug
supplier, arranging two controlled drug purchases from his supplier,
making numerous controlled drug buys from other drug dealers, and
submitting to debriefings with law enforcement agents, all at risk to
himself and his family, Dillard admitted to engaging in drug transac-
tions for personal profit, without the knowledge of the supervising
officers, during the period of his cooperation with authorities.

On appeal, Dillard claims that these drug transactions for personal
profit were necessary to establish contacts with the drug dealers so he
could set them up for controlled buys under the auspices of supervis-
ing law enforcement officers. The gravamen of his claim is that the
government breached its duty to act in good faith by failing to fulfill
its obligation under the plea agreement to make known to the district
court at sentencing the full extent of Dillard's cooperation, including
whether the government deemed him to have substantially assisted
authorities.

We find that the government was well within its right to refuse to
make a downward departure motion, given the circumstances of this
case. Not only was there no express promise in the plea agreement to
make such motion, but evidence as to the extent of Dillard's coopera-
tion and assistance with the authorities was presented to the district
court at sentencing, along with the government's conclusion that
because of Dillard's transgressions, the government deemed him not
to have substantially assisted them. Moreover, Dillard, by counsel,
admitted at sentencing that it was the government's prerogative not
to file a substantial assistance motion on Dillard's behalf, given Dil-
lard's actions. We decline to find plain error in this case in the district
court's failure to depart downward based on substantial assistance,
absent a government motion.

Dillard also raises an ineffective assistance of counsel claim, pro
se. Specifically, he claims that his trial attorney was ineffective in: (1)
failing to research and argue his right, under North Carolina law, to
possess a firearm; (2) leading him to believe that his term of impris-
onment would not be more than fifteen years; (3) failing to argue

                     3
against the enhancement of Dillard's sentence as a career offender;
and (4) failing to raise the issue of the government's failure to move
for a downward departure, failing to correct the record as to Dillard's
substantial assistance, and failing to argue that the government's
agreement to move for a downward departure for substantial assis-
tance was the basis for Dillard's agreement to plead guilty. A claim
of ineffective assistance of counsel should be raised by motion under
28 U.S.C.A. § 2255 (West 1994 & Supp. 1997), in the district court,
and not on direct appeal, unless it conclusively appears from the
record that the defense counsel did not provide effective representa-
tion. See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991). We find that it does not conclusively appear from the face of
the record that Dillard's defense counsel failed to provide effective
representation sufficient for this claim to be cognizable on direct
appeal.

The government has filed a motion to dismiss this appeal, claiming
that Dillard waived his right to appeal his sentence, and that this court
lacks jurisdiction over Dillard's sentencing claim because of the gov-
ernment's decision not to file a substantial assistance motion. While
true that Dillard does seek to appeal the district court's failure to
award him a downward departure from the applicable sentencing
guidelines, the essence of Dillard's appeal, by counsel, is prosecu-
torial misconduct. In addition, Dillard's claim raised pro se is based
on ineffective assistance of counsel. The plea agreement entered into
between Dillard and the government expressly excepted from waiver
any appeal based on prosecutorial misconduct and ineffective assis-
tance not known to the defendant at the time of entering into his
guilty plea. Because the alleged prosecutorial misconduct is inextrica-
bly intertwined with the sentencing claim Dillard raises by counsel,
and his claim of ineffective assistance of counsel is excepted from his
appeal waiver, we deny the government's motion to dismiss this
appeal.

We affirm Dillard's conviction and sentence. We deny without
prejudice counsel's motion to withdraw at this stage of the proceed-
ings. 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

                     4
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
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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