                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4258


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KIRT LIONEL BYNUM,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:07-cr-00242-CCB-1)


Submitted:    November 19, 2008             Decided:   December 4, 2008


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


James Wyda, Federal Public Defender, Martin G. Bahl, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Gregory Welsh, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kirt Lionel Bynum appeals from his conviction and 188-

month sentence after pleading guilty to possession with intent

to distribute 500 grams or more of cocaine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B) (2006).                   The Government has filed

a motion to dismiss the appeal, asserting that pursuant to the

appellate waiver contained in Bynum’s plea agreement, there is

no   basis     to   challenge     the     sentence      imposed.        In    response,

counsel   for       Bynum   concedes      that    the    Government’s        motion    to

dismiss should be granted.               Bynum’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), in which

he asserts there are no meritorious issues for appeal, but asks

this court to review whether Bynum’s guilty plea was valid and

whether his sentence was reasonable.                    Bynum has filed a pro se

supplemental brief in which he contends that: (1) the district

court failed to ensure he had reviewed the presentence report

(“PSR”)   with      counsel;      (2)    his    attorney       provided   ineffective

assistance by failing to object to his career offender status;

(3) the Fed. R. Crim. P. 11 hearing was invalid; and (4) his

sentence was unreasonable.

               Pursuant to a plea agreement, a defendant may waive

his appellate rights under 18 U.S.C. § 3742 (2006).                              United

States v.      Wiggins,     905   F.2d    51,    53     (4th    Cir.    1990)   (waiver

upheld    as    voluntarily       and    intelligently         made).        Whether   a

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defendant has waived his right to appeal is an issue of law

subject to de novo review.                       United States v. Marin, 961 F.2d

493, 496 (4th Cir. 1992).                    A waiver will preclude appeal of a

specific      issue       if   the    record      establishes            that    the     waiver     is

valid and that the issue is within the scope of that waiver.

United States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994).

              Bynum’s first claim is that the Rule 11 hearing was

inadequate because the district court failed to inform him that

he    could   not     withdraw        his    plea      should       the     court       reject     the

Government’s         sentencing           recommendations.                 Pursuant         to    Rule

11(c)(3)(B),         if    the      government         agrees       to    request       a    certain

sentence or sentencing range, or recommend that a particular

sentencing factor does or does not apply, the district court

“must advise the defendant that the defendant has no right to

withdraw       the        plea       if    the        court        does     not     follow         the

recommendation or request.”                   Because Bynum did not move in the

district court to withdraw his guilty plea, any challenges to

the Rule 11 hearing are reviewed for plain error.                                       See United

States v. Martinez, 277 F.3d 517, 524-25 (4th Cir. 2002).

              During       the      plea    colloquy,         while       the    district        court

informed Bynum that it was not a party to the plea agreement and

did     not     have           to     accept          the      Government’s             sentencing

recommendations,           the       court    failed          to    warn        Bynum    that      its

decision not to accept the Government’s recommendations would

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not be grounds for withdrawing his guilty plea.                          However, Bynum

has    presented    no     evidence       to   demonstrate       that       “but    for    the

error, he would not have entered the plea.”                           United States v.

Dominguez-Benitez, 542 U.S. 74, 83 (2004).                           The plea agreement

notified Bynum that the district court was not a party to the

plea agreement and that the court’s decision not to abide by the

stipulations contained in the agreement would not be grounds for

withdrawing the guilty plea.               During the Rule 11 hearing, Bynum

stated    that     he     had   reviewed           the   plea   agreement          with    his

attorney, understood each section, and was agreeing to the terms

voluntarily.

            There is no indication in the record that the omission

by the district court affected Bynum’s decision to enter his

guilty    plea,      as     Bynum     has          not   identified         any     evidence

demonstrating the probability of a different result “sufficient

to    undermine    confidence        in    the      outcome     of    the    proceeding.”

Dominguez-Benitez, 542 U.S. at 83 (internal quotation marks and

citation omitted).          Accordingly, we find that Bynum has failed

to     demonstrate        the    district          court’s      error       affected       his

substantial       rights,       as   the       record     establishes         that        Bynum

knowingly and voluntarily entered into his guilty plea.

            Bynum’s next claim is that the district court failed

to verify that he and his attorney had read and discussed the

PSR.     Pursuant to Fed. R. Crim. P. 32(i)(1)(A), the district

                                               4
court    “must     verify      that     the    defendant          and       the    defendant’s

attorney have read and discussed the presentence report and any

addendum    to     the       report.”         At    the    sentencing             hearing,    the

district court asked Bynum’s attorney whether he had reviewed

the PSR with his client; counsel replied that he had “read and

discussed     it      with    [Bynum]     extensively.”                 Despite       counsel’s

assurances to the court, Bynum contends the district court was

required to address him personally with regard to this matter.

While the district court must determine the defendant has had an

opportunity to review the PSR with counsel, this determination

can be made by asking “[the] defendant, his lawyer, or both.”

See United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.

1988).     Accordingly, we find the district court did not violate

Rule 32(i)(1)(A).

            Bynum next contends his attorney erred in conceding

that the offenses identified by the Government at sentencing

were    sufficient       to    establish       he    was     a    career          offender,    as

counsel did not consult with him regarding the validity of the

convictions      or     whether    he     was       actually       convicted         of     those

offenses.        However,       there    is     no    evidence         in    the     record    to

support     Bynum’s      assertions.               Because       the    record       does     not

conclusively       demonstrate          ineffective          assistance,           this     claim

should be raised in a 28 U.S.C. § 2255 (2000) motion rather than

on direct appeal.            See United States v. King, 119 F.3d 290, 295

                                               5
(4th Cir. 1997); United States v. DeFusco, 949 F.2d 114, 120-21

(4th Cir. 1991).

            Finally, Bynum contends his sentence was unreasonable.

However,    this   claim   is       squarely     within     the    scope    of   the

appellate waiver, as Bynum waived his right to appeal “from any

sentence within or below the advisory guidelines range resulting

from   an   adjusted    base    offense      level     of   31.”      See     United

States v. Blick, 408 F.3d 162, 172-73 (4th Cir. 2005).                     Based on

an offense level of 31 and a criminal history of VI, Bynum’s

Sentencing Guideline range was 188 to 235 months.                    Accordingly,

because Bynum’s sentence of 188 months was within the Guidelines

range, his claim is barred by the appellate waiver.

            Accordingly,       we   grant      the    Government’s     motion    to

dismiss in part as it relates to Bynum’s sentence.                           As for

Bynum’s claims regarding the validity of his Rule 11 hearing,

the district court’s failure to abide by Rule 32(i)(1)(A), and

ineffective   assistance       of    counsel,    we    deny    the   Government’s

motion to dismiss as to those claims, but nonetheless affirm the

district    court’s    judgment.        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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