UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4366

ADRIEL TORRES BURGOS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, District Judge.

(CR-97-155)

Submitted: March 16, 1999

Decided: April 6, 1999

Before WILLIAMS and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed in part and dismissed in part by unpublished per curiam

opinion.

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COUNSEL

Philip J. Roth, Jr., Asheville, North Carolina, for Appellant. Gretchen

C. F. Shappert, OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Adriel Torres Burgos appeals from his conviction, pursuant to a

guilty plea, of one count of racketeering, see 18 U.S.C.A. § 1961(1),

(5) (West 1984 & Supp. 1998) (Count 1), one count of conspiracy to

commit racketeering, see 18 U.S.C.A. § 1962(d) (West 1984 & Supp.

1998) (Count 2), one count of conspiracy to possess with intent to distribute and distribute cocaine, methamphetamine and marijuana, see

21 U.S.C. § 846 (1994) (Count 3), six counts of possession with intent

to distribute methamphetamine, see 21 U.S.C.§ 841(a)(1) (1994)

(Counts 6 to 11), one count of enterprise in aid of racketeering activity, see 18 U.S.C. § 1959(b)(2) (1994) (Count 12), and one count of

using and carrying a firearm and abetting same during and in relation

to a crime of violence, see 18 U.S.C.A.§ 924(c) (West Supp. 1998)

(Count 13). Burgos' attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), certifying that Burgos' appeal does

not present any meritorious issues.1 Burgos has filed two pro se supplemental briefs. He contends that the Government prosecutors procured testimony in violation of 18 U.S.C. § 201(c)(2) (1994)2 and that

his guilty plea was involuntary because of alleged overbroad conditions of probation in the plea agreement. We affirm in part and dismiss in part.

During trial, Burgos and his co-defendants entered into plea agreements with the Government. Burgos agreed to plead guilty to a series

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1 Counsel's Anders brief raises the issue of whether the Government

procured testimony in violation of 18 U.S.C. § 201(c)(2) (1994). Counsel

asserts that the issue will not stand scrutiny by this Court. Since filing

the Anders brief, counsel has withdrawn the issue from this Court's consideration.

2 Section 201(c)(2) prohibits giving anything of value in exchange for

sworn testimony.

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of offenses arising from his participation in a drug distribution enterprise. Burgos also agreed to waive his right to challenge his conviction in a direct appeal or other post-conviction action excepting

claims of ineffective assistance of counsel and prosecutorial misconduct. Pursuant to Fed. R. Crim P. 11(e)(1)(c), the Government agreed

to recommend that the sentence on counts one and two be sixty

months' probation and that the sentence on the remaining counts be

ninety-six months' imprisonment.

After reviewing the record, we find that the court conducted a

proper Rule 11 hearing. The court determined that Burgos was competent to enter a plea and that he understood the charges against him.

He was informed of the maximum and minimum sentences and the

possible fines. The court also reviewed the plea agreement with Burgos, including a review of Burgos' waiver of appellate rights. Burgos

stated that he understood he was waiving his right to raise certain

issues on appeal except for ineffective assistance of counsel and prosecutorial misconduct. Burgos stated that he was not promised anything other than what was in the agreement. He was informed of the

rights he was waiving by entering a guilty plea. After hearing from

the Government and considering the evidence at trial, the court found

a sound factual basis for accepting the guilty plea. The court found

that based on evidence presented at trial and other background information, it was not necessary to prepare a presentence investigation

report. The court imposed the sentence agreed to by the parties as

contained in the plea agreement.

On appeal, Burgos contends that his guilty plea, which imposed as

a condition of probation that Burgos refrain from owning or operating

motorcycles or attending motorcycle events or being employed in the

adult entertainment industry or having contact with persons in those

industries while he is incarcerated, was overbroad. He also relies on

United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998) to assert

that prosecutors violated 18 U.S.C. § 201(c)(2).

The Government has filed a motion to dismiss the appeal based

upon Burgos' waiver of his appellate rights in his plea agreement.

Because Burgos' waiver was knowing and voluntary, we grant the

motion as to his appellate contention that the agreement was overbroad. We deny it as to his Singleton claim because Burgos did not

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waive his right to appeal on the basis of prosecutorial misconduct.

This claim, however, is meritless. Singleton has been rejected by the

Tenth Circuit in an en banc opinion, see United States v. Singleton,

___ F.3d ___, 1999 WL 6469 (10th Cir. Jan. 8, 1999) (No. 97-3178)

(en banc), and we find the rationale of that opinion persuasive.

Pursuant to the requirements of Anders, this court has reviewed the

record for potential error and has found none. Therefore, we affirm

Burgos' convictions and sentences. 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 move 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 IN PART AND DISMISSED IN PART

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