UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4227

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARIO FANEAK WASHINGTON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (CR-04-63)

Submitted: November 30, 2005 Decided: March 3, 2006

Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

M. Timothy Porterfield, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

Mario Faneak Washington appeals the district court’s

order sentencing him to 120 months’ imprisonment following his

guilty plea to a single count of possession with intent to

distribute at least five grams of cocaine base, in violation of

(a)(1) (2000). Washington’s counsel filed a brief

pursuant to Anders v. California,

(1967), stating that

there are no meritorious grounds for appeal, but questioning

whether (1) Washington was impermissibly sentenced in accordance

with the statutory minimum and (2) Washington received ineffective

assistance of counsel. We affirm.

In his plea agreement, Washington waived all rights to

appeal except for ineffective assistance of counsel, prosecutorial

misconduct, or the sentence to the extent one or more findings on

the guideline issues were inconsistent with the explicit

stipulations contained in the plea agreement. After a thorough and

comprehensive Fed. R. Crim. P. 11 plea colloquy, the district court

accepted Washington’s plea as knowing and voluntary.

Pursuant to U.S. Sentencing Guidelines Manual (“USSG”) §

2D1.1(c)(7) (2004), a base offense level of twenty-six was

assigned, based on a drug quantity of at least five grams, but not

more than twenty grams, of cocaine base. A three-level reduction

for acceptance of responsibility was applied to the base offense

level, rendering a total offense level of twenty-five. USSG

- 2 - § 3E1.1(a),(b). Based on a total offense level of twenty-three and

a criminal history category of V, Washington’s recommended

guideline range was 84 to 105 months’ imprisonment. Nevertheless,

Washington was sentenced to the statutory minimum term for this

offense, 120 months’ imprisonment. See

(b)(1)(B)

and 851 (2000).

Washington’s claim that he was inappropriately sentenced

in accordance with the statutory minimum is without merit. As this

court recently made clear in United States v. Robinson,

(4th Cir.), cert. denied,

(2005), “[United

States v. Booker,

(2005),] did nothing to alter the

rule that judges cannot depart below a statutorily provided minimum

sentence.” Section 841(b)(1)(B)’s enhanced penalty provision reads

in relevant part: “If any person commits such a violation [of this

subparagraph] after a prior conviction for a felony drug offense

has become final, such person shall be sentenced to a term of

imprisonment which may not be less than ten years.” Washington

pled guilty under § 841(a) and he admitted to the predicate offense

for the enhanced penalty provision at the plea colloquy.

Accordingly, the application of § 841(b(1)(B)’s enhanced penalty

provision to Washington is clear and unequivocal. Thus, the

district court was required by statute to impose the mandatory

minimum term of imprisonment, and there is no Booker error. See

Robinson,

(“[Even after Booker], a district court

- 3 - has no discretion to impose a sentence outside of the statutory

range established by Congress for the offense of conviction.”).

Washington’s claim of ineffective assistance of counsel

is equally unavailing. A claim of ineffective assistance of

counsel generally should be asserted on collateral review rather

than on direct appeal, unless ineffective assistance is apparent on

the face of the record. United States v. King,

(4th Cir. 1997). To succeed on claims of ineffective assistance of

counsel, a defendant must show that his counsel’s performance fell

below an objective standard of reasonableness, and his counsel’s

deficient performance was prejudicial. Strickland v. Washington,

(1984). Turning to the second prong of

Strickland in the context of a guilty plea, a defendant must

demonstrate that there is a reasonable probability that, but for

counsel’s unprofessional errors, he would not have pleaded guilty

and would have insisted on going to trial. Hill v. Lockhart,

(1985). Washington’s claim of ineffective assistance

fails because he fails to make such a showing on the face of the

record on appeal.

Finding no meritorious issues upon our review of the

record, we affirm Washington’s conviction and sentence. 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

- 4 - 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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