                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4257


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEPHEN MAURICE BURKS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:13-cr-00144-REP-1)


Submitted:   November 20, 2014            Decided:   December 5, 2014


Before AGEE, DIAZ, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Gregory B. English, ENGLISH LAW FIRM, PLLC, Alexandria,
Virginia, for Appellant.       Dana J. Boente, United States
Attorney, Jessica D. Aber, Assistant United States Attorney,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Stephen   Maurice   Burks      pled   guilty,    pursuant     to   a

written plea agreement, to mail fraud, in violation of 18 U.S.C.

§ 1341.   On appeal, Burks asserts that the district court erred

by departing upward in calculating his sentence based on the

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)

and   that     trial   counsel    was       ineffective      for    failing     to

sufficiently develop the record at sentencing.               In response, the

Government contends that Burks’s waiver of appellate rights in

his plea agreement forecloses the appeal of his sentence.                       We

dismiss the appeal.

             Pursuant to a plea agreement, a defendant may waive

his appellate rights.       United States v. Manigan, 592 F.3d 621,

627 (4th Cir. 2010).        A waiver will preclude an appeal of an

issue “if [the waiver] is valid and the issue appealed is within

the scope of the waiver.”        United States v. Davis, 689 F.3d 349,

355 (4th Cir. 2012).         “An appellate waiver is valid if the

defendant knowingly and intelligently agreed to [waive the right

to appeal].”     Manigan, 592 F.3d at 627.          To determine whether a

waiver is knowing and intelligent, we look to the sufficiency of

the plea colloquy and examine the totality of the circumstances.

United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).

Whether a defendant validly waived his right to appeal is a

question of law that this court reviews de novo.                   United States

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v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S.

Ct. 126 (2013).

               Burks challenges the district court’s upward departure

in calculating his Guidelines range.                Our review of the record

leads    us    to   conclude     that   Burks’s    appellate       waiver    was    both

knowing and intelligent.              Because the waiver is valid, Burks is

precluded      from    challenging      the    calculation    of    his     Guidelines

range.

               The appellate waiver does not, however, bar Burks’s

claim that trial counsel was ineffective at sentencing.                             See

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

Nevertheless, ineffective assistance of counsel claims are not

addressed      on     direct   appeal     unless    counsel’s       ineffectiveness

appears conclusively on the record.                 United States v. Powell,

680     F.3d    350,    359    (4th     Cir.   2012).        Because      ineffective

assistance does not conclusively appear on the record before us,

we decline to review Burks’s ineffective assistance claims on

direct    appeal.        Burks    may,    nonetheless,       reassert       his    claim

through a 28 U.S.C. § 2255 habeas petition in order to allow for

adequate development of the record.                  See Powell, 680 F.3d at

359.

               Accordingly, we dismiss Burks’s appeal.                    We dispense

with oral argument because the facts and legal contentions are



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adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.

                                                                DISMISSED




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