UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 00-4329
KEITH ANTHONY BUDD,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
              Deborah K. Chasanow, District Judge.
                            (CR-98-519)

                  Submitted: December 8, 2000

                      Decided: February 20, 2001

   Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.



Affirmed in part and dismissed in part by unpublished per curiam
opinion.


                             COUNSEL

Keith Anthony Budd, Appellant Pro Se. Deborah A. Johnston,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. BUDD
                               OPINION

PER CURIAM:

   Keith Anthony Budd appeals his conviction and 135-month sen-
tence imposed after he pled guilty to conspiracy to possess with intent
to distribute marijuana and cocaine, in violation of 21 U.S.C. § 846
(1994). He contends that (1) his guilty plea was not knowingly and
voluntarily entered because he was not informed of the mandatory
minimum sentence or that the amount of drugs was an element of the
offense; (2) the Government breached the plea agreement by failing
to move for a substantial assistance departure under U.S. Sentencing
Guidelines Manual § 5K1.1, p.s. (1998); (3) the district court erred in
determining the amount of drugs attributable to him and in enhancing
his base offense level for possession of a firearm;* and (4) counsel
provided ineffective representation. Finding no reversible error, we
affirm in part and dismiss in part.

  Budd challenges the validity of his guilty plea on the ground that
he was not informed of the mandatory minimum sentence. The record
belies his claim. The district court briefly mentioned the mandatory
minimum sentence at the conclusion of the plea hearing. Moreover,
because the sentencing guideline range to which Budd was subject
was longer than the ten-year mandatory minimum sentence, any error
was harmless. United States v. Damon, 

, 564 n.2 (4th
Cir. 1999) (providing standard).

   Budd also asserts that his guilty plea is invalid because he was not
informed that the amount of drugs is an element of the offense. As
support for his claim, he relies on Apprendi v. New Jersey, 

, 2362-63 (2000). Because Budd received a sentence that is less
than the statutory maximum set forth in 21 U.S.C.A. § 841(b)(1)(C)
(West 1999) (providing for twenty-year maximum without regard to
drug quantity), his claim fails. See United States v. Angle, 

, 123 (4th Cir. 2000), petition for reh’g filed, Oct. 26, 2000 (No.
96-4662).

  *Although Budd frames this issue as one challenging the factual basis
for his plea, his arguments pertain to the establishment of the sentencing
guideline range.
                       UNITED STATES v. BUDD                         3
   Next, Budd contends that the Government breached the plea agree-
ment by failing to move for a substantial assistance departure under
U.S. Sentencing Guidelines Manual § 5K1.1, p.s. (1998). Because the
Government retained the discretion to file a § 5K1.1 motion and
because Budd failed to allege an unconstitutional motive or that the
failure to file was not related to a legitimate government end, his
claim is without merit. United States v. Wallace, 

, 87 (4th
Cir. 1994) (citing Wade v. United States, 

, 185-86
(1992)).

   Budd also challenges the amount of drugs attributable to him and
the imposition of a two-level enhancement for possession of a fire-
arm. Budd waived his right to appeal his sentence in his plea agree-
ment, and we find that the waiver was made knowingly and
voluntarily. United States v. Broughton-Jones, 

, 1146
(4th Cir. 1995) (providing standard). We therefore dismiss this por-
tion of the appeal.

   Finally, Budd asserts that his counsel provided ineffective assis-
tance in numerous ways. We decline to address these claims on direct
appeal because counsel’s ineffectiveness does not conclusively appear
from the record. United States v. Richardson, 

, 198 (4th
Cir. 1999) (providing standard and noting that ineffective assistance
of counsel claims generally should be raised by motion under 28
U.S.C. § 2255), cert. denied, 

(2000).

  Accordingly, we affirm Budd’s conviction and sentence and dis-
miss his sentencing guidelines claims for lack of jurisdiction. We dis-
pense 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