                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5015


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANGEL ABEL GUZMAN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-01068-HMH-3)


Submitted:   November 21, 2011            Decided:   December 8, 2011


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


C.   Fredric  Marcinak,   III,  SMITH   MOORE   LEATHERWOOD  LLP,
Greenville, South Carolina, for Appellant.    William N. Nettles,
United States Attorney, Andrew B. Moorman, Sr., Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Angel    Abel     Guzman    pled       guilty     to    possession       with

intent to distribute and distribution of 5 grams or more of

methamphetamine in violation of 18 U.S.C.A. § 841(a), (b)(1)(B)

(West 1999 & Supp. 2011) (Count 5), and was sentenced to a term

of 108 months of imprisonment.                   In his plea agreement, Guzman

waived his right to appeal his conviction or sentence on any

ground, including the grounds listed in 18 U.S.C. § 3742 (2006),

excepting only claims of ineffective assistance of counsel and

prosecutorial         misconduct.        Guzman       now     seeks    to     appeal    his

sentence on the ground that the district court miscalculated the

Guidelines     range      and    declined       to    depart    or    vary     below    the

Guidelines range.         The government asserts that the appeal should

be dismissed based on the waiver of appellate rights contained

in Guzman’s plea agreement.               Guzman has filed various materials

comprising     a   pro    se    supplemental         brief,    in    which    he   further

challenges his conviction and sentence.                        He also asserts that

both    his   trial      and    appellate       attorneys      rendered       ineffective

assistance, and that the government breached the plea agreement.

For the reasons that follow, we dismiss the appeal to the extent

that Guzman challenges his conviction or sentence.                           With respect

to     Guzman’s    pro     se    claims     of       ineffective       assistance       and

prosecutorial misconduct, we affirm the judgment.



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            Guzman only addresses the waiver in his reply brief.

He argues that it is not enforceable because the district court

failed to explain or discuss the waiver adequately with him at

the Fed. R. Crim. P. 11 hearing.                      In his pro se supplemental

brief,   Guzman        claims    that        (1)   the     waiver       is    unenforceable

because his education and knowledge of English and legal terms

is limited, thus suggesting that he did not knowingly waive his

appellate rights; and (2) because the district court advised him

after    his     sentence       was    imposed       that       he    could     appeal    his

sentence, contrary to the terms of the plea agreement.

            It is well settled that “a defendant may waive in a

valid    plea    agreement       the     right       of    appeal       under    18     U.S.C.

§ 3742.”       United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.

1990).     Whether a defendant has effectively waived the right to

appeal is an issue of law that this court reviews de novo.

United   States        v.   Blick,     408    F.3d    162,      168    (4th     Cir.    2005).

Here, the record of the Rule 11 proceeding discloses that the

district court fully complied with the requirements of Rule 11

to ensure that the guilty plea was knowing and voluntary.                                 The

record also establishes that Guzman waived his appeal rights

knowingly and intelligently.                   First, the waiver provision was

set out in detail in the plea agreement.                             Guzman informed the

district       court    that     his    attorney          had    gone    over     the     plea

agreement with him, and that he understood it.                                  Second, the

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court asked Guzman during the Rule 11 hearing whether he was

voluntarily giving up his right to appeal his conviction and

sentence and Guzman replied affirmatively.                         Although Guzman, a

citizen of Honduras, had only six years of formal education, he

took    an    active      part    in    his      sentencing,      insisting         that    his

attorney raise certain issues, and made an articulate statement

to the court before sentence was imposed.                        We conclude that the

record establishes that his waiver was knowing and intelligent.

              In    his    pro     se     supplemental         brief,   Guzman       further

contends      that       the     waiver     is      unenforceable       because,         after

imposing sentence, the district court told him he had the right

to appeal.         Here Guzman relies on United States v. Mannigan, 592

F.3d 621 (4th Cir. 2010).                  However, in Mannigan, the district

court    failed      to    address        the    waiver    provision         in    the     plea

agreement         with    the    defendant          at   the    Rule    11        proceeding.

Similarly, in United States v. Wood, 378 F.3d 342, 349 (4th Cir.

2004),       on    which       Guzman     also      relies,      the    district         court

mischaracterized a material term in the plea agreement at the

Rule 11 hearing and the government did not correct it.

              By contrast, where the district court addressed the

waiver provision at the Rule 11 hearing, but told the defendant

after imposing sentence that he could appeal his sentence, the

Sixth Circuit held that the waiver was enforceable because the

district court lacked the power to modify the plea agreement.

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See United States v. Fleming, 239 F.3d 761, 764-65 (6th Cir.

2001) (rejecting the holding in United States v. Buchanan, 59

F.3d 914, 917 (9th Cir. 1995), that such a statement from the

court created an expectation of the ability to appeal, on which

the defendant should be able to rely).               We find the reasoning in

Fleming      persuasive      and      conclude    that     Guzman’s       waiver   is

enforceable.       Therefore, we dismiss his appeal of his conviction

and sentence.

             The   waiver     provision    excepted      claims    of    ineffective

assistance of counsel.             Guzman claims that his trial attorney,

Jessica Salvini, was ineffective because she (1) promised that

he would be held responsible only for the methamphetamine he

distributed and would receive a two-year sentence; (2) refused

to   argue   at    sentencing      that   he   was   not   responsible      for    the

methamphetamine and cocaine found in the pickup truck; and (3)

failed to tell him that he would be held responsible for the

additional     drugs.        Guzman    further    claims    that    his    appellate

attorney was ineffective in refusing claims he wished to raise

relating to his sentence, and made factual errors in the formal

brief.

             Claims     of    ineffective        assistance    of       counsel    are

generally not cognizable on direct appeal.                    United States v.

Benton, 523 F.3d 424, 435 (4th Cir. 2008).                    Instead, to allow

for adequate development of the record, a defendant must bring

                                          5
his claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion.

Id.     However, this court can entertain such claims on direct

appeal    if    the     record     conclusively             establishes         ineffective

assistance.     United States v. Richardson, 195 F.3d 192, 198 (4th

Cir.   1999).         Our    review       of    the    record      does    not    establish

conclusively that either Guzman’s trial or appellate attorney

has rendered ineffective assistance.

            Finally, Guzman contends that the government breached

the plea agreement by agreeing that he would plead guilty only

to distribution of the 28 grams of methamphetamine he admitted

distributing, then urging the court at sentencing to hold him

responsible     for     the    additional             methamphetamine       and     cocaine

seized   from   the     truck.        He       also    claims      that   the     government

deliberately led the district court to believe, wrongly, that

the additional drugs were seized from the vehicle he was riding

in at the time he and the others were arrested.

            These claims are baseless.                    The plea agreement stated

that Guzman would plead guilty to a charge that he, Lopez and

Tejada-Martinez        possessed      5    or      more    grams    of    methamphetamine

with the intent to distribute it.                         There was no agreement to

limit Guzman’s responsibility to 28 grams of methamphetamine.

At    sentencing,      the    government           explained       the    basis    for    the

recommended base offense level after Guzman’s objection.                                 Both

defense counsel and the government clarified for the court where

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the additional drugs were found.                 On this record, we conclude

that    the     government     did     nothing     that     breached        the     plea

agreement.

              We   therefore   dismiss        Guzman’s   appeal     to   the      extent

that he challenges his conviction and sentence.                    With respect to

his     claims     of    ineffective          assistance     and      prosecutorial

misconduct, we find no error and affirm the judgment of the

district      court.    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.

                                                              DISMISSED IN PART;
                                                                AFFIRMED IN PART




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