                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4168



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL HENDERSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:03-cr-00049-8-MU)


Submitted:   October 19, 2007             Decided:   November 1, 2007


Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, P.A., Asheville, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Amy E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Michael Henderson pled guilty to conspiracy to possess

with intent to distribute heroin, in violation of 21 U.S.C. § 846

(2000).    In December 2004, the district court sentenced Henderson

as a career offender to 262 months of imprisonment.                  On appeal,

Henderson asserts that, in light of United States v. Booker, 543

U.S. 220 (2005), the district court violated his Sixth Amendment

rights by sentencing him as a career offender based upon prior

convictions      that    were    neither    charged   in   the   indictment   nor

admitted    by    him.      He    also     contends   that   counsel   provided

ineffective assistance by failing to object to his career offender

designation on Sixth Amendment grounds.               The Government asserts

that Henderson validly waived the right to appeal his sentence in

the plea agreement and that his ineffective assistance claim fails

on the merits.      We dismiss the appeal.

           A defendant may waive the right to appeal if that waiver

is knowing and intelligent.          United States v. Amaya-Portillo, 423

F.3d 427, 430 (4th Cir. 2005).             Generally, if the district court

fully questions a defendant regarding the waiver of his right to

appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both

valid and enforceable. United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68

(4th Cir. 1991).          The question of whether a defendant validly




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waived his right to appeal is a question of law that we review de

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

            Our review of the record leads us to conclude that

Henderson knowingly and voluntarily waived the right to appeal his

sentence.   Moreover, the Booker sentencing issue raised on appeal

falls within the scope of the waiver.      See id. at 169-70, 173; see

also Johnson, 410 F.3d at 152-53.

            Although the waiver provision in the plea agreement

precludes our review of the sentencing claim, the waiver contains

an exception for claims of ineffective assistance of counsel. This

court, however, “may address [claims of ineffective assistance] on

direct appeal only if the lawyer’s ineffectiveness conclusively

appears from the record.”       United States v. Baldovinos, 434 F.3d

233, 239 (4th Cir.), cert. denied, 546 U.S. 1203 (2006).       Because

we find that counsel’s ineffectiveness does not conclusively appear

from the record, we decline to address Henderson’s ineffective

assistance claim on direct appeal.

            Accordingly,   we    dismiss   Henderson’s   appeal of his

sentence based upon Booker and, to the extent Henderson raises an

ineffective assistance claim, we decline to address that claim in

this appeal.   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


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