UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4828


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ADRIAN JOSE ROMERO, a/k/a Dre, a/k/a Dri, a/k/a Joseph Wayne Green,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:19-cr-00011-JPJ-PMS-1)


Submitted: May 29, 2020                                           Decided: July 9, 2020


Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Steven R. Minor, ELLIOTT, LAWSON & MINOR, PC, Bristol, Virginia, for Appellant.
Thomas T. Cullen, United States Attorney, S. Cagle Juhan, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Adrian Jose Romero pled guilty pursuant to a plea agreement to conspiracy to

distribute, and to possess with intent to distribute, “50 grams or more of methamphetamine

(actual).” He was sentenced to 235 months in prison. On appeal, he raises various claims.

The Government seeks to enforce the appellate waiver in his plea agreement. Although

we find that Romero’s claims are not barred by the appellate waiver, we affirm his

conviction and sentence.

       Romero asserts that, while the appellate waiver in his plea agreement is valid and

enforceable, the claims he raises on appeal are not waivable. While certain claims may not

be waived in a plea agreement, the limited number of unwaivable claims must allege

“fundamental issues.” United States v. Thornsbury, 

, 539 (4th Cir. 2012)

(noting that, to avoid application of appellate waiver, defendant must allege that sentence

was beyond the authority of the district court). In addition, even a valid and enforceable

appeal waiver does not bar the appeal of a sentence based on a constitutionally

impermissible factor such as race. United States v. Marin, 

, 496 (4th Cir.

1992); see also United States v. Johnson, 

, 415 (2d Cir. 2003) (finding that

plea agreement cannot waive appeal where defendant alleges that his “sentence is

constitutionally deficient because it rests improperly upon his status”).

                                             I.

       Romero first contends that the Sentencing Guidelines involve intentional

discrimination because the penalties for actual/ice methamphetamine were increased by

the Sentencing Commission with the knowledge that doing so would mean more jail time

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for increasing numbers of Hispanic offenders. Given that Romero seeks to raise a claim

that his sentence was the product of racial discrimination, we find the appellate waiver does

not bar his claim. Thus, this narrow claim will be reviewed on the merits.

       Romero contends that the actual/ice methamphetamine Guidelines result in a

disparate (and harsher) impact on Hispanic offenders, when compared to the less severe

sentences for crimes involving a methamphetamine mixture. However, even assuming that

a disparate impact exists, “disparate impact and foreseeable consequences, without more,

do not establish a constitutional violation.” Columbus Bd. of Educ. v. Penick, 

, 464 (1979); see also United States v. Williamson, 

, 1529 (10th Cir. 1995)

(finding that disparate impact does not imply a finding of intentional discrimination). With

regard to the crack/powder cocaine disparity in statutory mandatory minimum sentences,

we have repeatedly rejected claims that a disparate impact on African Americans gave rise

to an equal protection claim. We instead held that the statute was facially neutral, it was

not being applied in a discriminatory manner, and there was no evidence of a

discriminatory motivation on the part of Congress. Without these showings, we examined

the statute under the rational basis test and determined that Congress could have rationally

concluded that distribution of cocaine base was a greater menace to society than

distribution of cocaine powder and, thus, warranted greater penalties. Accordingly, despite

any disparate impact, no equal protection violation existed. See, e.g., United States v.

Perkins, 

, 518-19 (4th Cir. 1997).

       Romero does not address the standards for an equal protection claim and contends

only that the Commission was aware of the disparate impact. Thus, even if true, Romero’s

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contentions are insufficient to show a violation of equal protection. United States v.

Frazier, 

, 95 (3d Cir. 1992) (noting that “even conscious awareness” that the

law will have a racially disparate impact does not invalidate law, so long as “that awareness

played no causal role” in the passage of the law). Moreover, Romero makes no attempt to

show that it was irrational to determine that methamphetamine of a higher purity was a

more serious threat to society than a less potent mixture. Accordingly, this claim is without

merit.

                                                II.

         Next, Romero asserts that the district court erred in accepting his plea without a

sufficient factual basis as to the methamphetamine type (ice vs. a mixture) and quantity.

This claim is not barred by his waiver. See United States v. McCoy, 

, 364 (4th

Cir. 2018). As such, this narrow issue will be addressed on the merits.

         “A stipulated recitation of facts alone is sufficient to support a plea.”

In

his plea agreement, Romero stipulated to well over 50 grams of actual methamphetamine.

Romero’s assertion that, because he was incarcerated at the time of the crimes, he was

incapable of knowing the purity of the methamphetamine involved is irrelevant. In his plea

agreement, Romero agreed that witnesses’ testimony would prove that the crime involved

at least 50 grams of actual methamphetamine. Notably, he does not dispute this on appeal




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and, instead, admits that the Government already proved nearly 300 grams of ice

methamphetamine at sentencing. As such, his claim is frivolous. *

                                            III.

       Finally, Romero asserts that his attorney was ineffective for failing to object to the

presentence report and to seek relief from the stipulations in the plea agreement regarding

his drug type and quantity. The Government concedes that this claim is not barred by his

appellate waiver. However, claims of ineffective assistance are cognizable on direct appeal

“only where the record conclusively establishes ineffective assistance.” United States v.

Baptiste, 

, 216 n.1 (4th Cir. 2010). A defendant should instead generally raise

ineffectiveness claims in a 28 U.S.C. § 2255 (2018) motion, to permit sufficient

development of the record. See Massaro v. United States, 

, 504-06 (2003).

We find that Romero’s ineffectiveness claim is not cognizable on direct appeal, as the

record here does not establish, let alone conclusively so, that his counsel’s performance

was deficient or that Romero was prejudiced as a result.

       Accordingly, we affirm. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                                AFFIRMED



       *
         Romero actually seeks to challenge the drug quantity at sentencing, but he frames
his claim as one attacking the factual basis (presumably to avoid the appellate waiver). We
note that Romero’s attacks on his drug quantity at sentencing were waived in his plea
agreement.

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