                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4218


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ISMALIUS JARON WHITE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (4:06-cr-00068-FL-1)


Submitted:   January 28, 2010             Decided:   February 26, 2010


Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Ismalius        Jaron    White         pled    guilty     to   conspiracy          to

distribute and possess with intent to distribute more than fifty

grams of cocaine base (crack) and was sentenced to 420 months of

imprisonment.        On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting there are

no meritorious grounds for appeal, but raising the following

issues: (1) whether the district court impermissibly enhanced

White’s sentence by “double counting” his prior conduct for both

criminal     history        and   relevant          conduct      purposes;       (2)    whether

trial counsel rendered ineffective assistance; (3) whether the

Government engaged in prosecutorial misconduct; and (4) whether

White failed to execute a knowing and voluntary plea agreement.

The    Government      has    filed       a    motion      to    dismiss    the    appeal       of

White’s sentence, noting that he waived this right in his plea

agreement.      For the reasons that follow, we dismiss in part and

affirm in part.

             First,     we    find    that       White      has    waived    his       right    to

appeal his sentence.              A review of his plea agreement and his

Fed.    R.   Crim.     P.    11   hearing        reveals        that   he   knowingly          and

voluntarily      pled       guilty    and      waived      his    right     to    appeal       his

sentence.       United States v. Broughton-Jones, 71 F.3d 1143, 1146

(4th Cir. 1995).            Accordingly, we grant the Government’s motion

to    dismiss    the    appeal       of       White’s      sentence.        Therefore,          we

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decline to further address counsel’s first issue raised in his

Anders brief as this issue seeks to challenge the validity of

White’s sentence.

              Second,    we   find    no   ineffective    assistance       of    trial

counsel at this juncture.              Claims of ineffective assistance of

counsel generally are not cognizable on direct appeal.                          United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Instead,

ineffective assistance claims are appropriately brought pursuant

to 28 U.S.C.A. § 2255 (West Supp. 2009), to allow for adequate

development of the factual record.                 King, 119 F.3d at 295.            A

defendant     may     raise   an     ineffective     counsel    claim     on    direct

appeal only if the record conclusively demonstrates that defense

counsel did not provide effective representation. United States

v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

              Next,     counsel     suggests    the     Government      engaged     in

prosecutorial misconduct.             As conceded by counsel, however, the

test   for    prosecutorial        misconduct   is    whether     the   prosecution

made a remark so prejudicial that it denied the defendant a fair

trial.       United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.

1993).       White’s    guilty     plea    conviction    simply    does    not    lend

itself to a prosecutorial misconduct analysis, United States v.

Wilson, 135 F.3d 291, 297 (4th Cir. 1998), and we find none on

the record.



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          Last,    counsel   questions        whether    White   knowingly    and

voluntarily    executed   his   plea    and    plea     agreement.    As    noted

above, the record reveals that White knowingly and voluntarily

pled guilty.     To the extent White contests the validity of his

plea and agreement, however, he is required to show plain error,

as he failed to move in the district court to withdraw his

guilty plea.    See United States v. Martinez, 277 F.3d 517, 524,

527 (4th Cir. 2002) (providing standard).                 White’s claim fails

as he has not shown that but for any alleged errors there was a

reasonable probability that he would not have entered the plea.

United States v. Massenburg, 564 F.3d 337, 344 (4th Cir. 2009). ∗

          In accordance with Anders, we have reviewed the entire

record in this case, including the issues raised in White’s pro

se supplemental briefs, and have found no meritorious issues for

appeal.   Accordingly, we affirm White’s conviction and dismiss

the appeal of his 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 counsel believes

that such a petition would be frivolous, then counsel may move


     ∗
       Indeed, in light of White’s extensive criminal history and
his active involvement in the case below, he would be hard
pressed   to   show  that   he   misunderstood  the  nature   and
consequences of his guilty plea.



                                       4
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.



                                                         DISMISSED IN PART;
                                                           AFFIRMED IN PART




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