                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4069


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KIRK L. LONEY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:02-cr-00290-REP-1)


Submitted:    August 31, 2009              Decided:   September 10, 2009


Before GREGORY, SHEDD, and AGEE, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Edwin F. Brooks, EDWIN F. BROOKS, L.L.C., Richmond, Virginia,
for Appellant.   Dana J. Boente, Acting United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Kirk Loney pled guilty to possession with intent to

distribute five or more grams of cocaine base (crack).                                       The

district court imposed a 105-month sentence.                               Counsel filed a

brief    in     accordance    with     Anders          v.    California,      386     U.S.    738

(1967), acknowledging that Loney waived his right to appeal his

sentence and asserting that there were no meritorious issues for

appeal.       The Government has filed a motion to dismiss the appeal

asserting that, pursuant to the appellate waiver contained in

Loney’s       plea   agreement,      there        is    no    basis    to     challenge      the

sentence imposed.           Loney has opposed the motion to dismiss and

has filed a pro se supplemental brief in which he challenges the

validity        of   his    guilty    plea     and          asserts    that    counsel        was

ineffective.

                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

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).

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              Loney asserts that his plea was not voluntary because

he was brainwashed and threatened with a life sentence if he did

not   plead     guilty       and    he   was       promised          a    five-to-seven       year

sentence if he entered the plea.                             Loney asserts that he was

under stress at the time of the plea hearing and that he is

factually innocent.

              During the plea hearing pursuant to Fed. R. Crim. P.

11, Loney testified that he was “under a lot of strain” but that

he was sure he was competent to make the decision to plead

guilty.    Loney’s attorney explained that Loney was under strain

because    of       physical       injuries        he        received      in   a    car     wreck

preceding his arrest.              Counsel stated that he knew of no reason

why Loney could not make a knowing, intelligent, and voluntary

decision with respect to the plea.                           The court noted that Loney

responded “appropriately and accurately to the questions” asked.

              The     court        explained        and        Loney        stated     that     he

understood the nature of the charge and the minimum and maximum

sentences.           Loney     stated    that           he     had       discussed    the     plea

agreement, possible defenses and sentences with counsel and was

entirely   satisfied         with     counsel’s          services.           The     court    also

ensured that Loney understood that, in his plea agreement, he

was waiving the right to appeal.

      Loney admitted that he was pleading guilty because he was,

in fact, guilty of the charged offense.                                  In response to the

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court’s inquiry whether Loney had been threatened, or whether

any promises were made to induce his plea, he replied, “No,

ma’am.”       Loney’s conclusory statements on appeal that he was

coerced into pleading guilty and that his will was overborne are

insufficient to show that his sworn statements made during the

plea hearing as to the voluntariness of his plea, lack of any

threats, and his satisfaction with counsel were not true.                                  See

Blackledge      v.   Allison,       431      U.S.    63,     73-74    (1977);       Beck    v.

Angelone, 261 F.3d 377, 395-96 (4th Cir. 2001) (absent “clear

and convincing evidence” to the contrary, defendant is bound by

statements made under oath at Rule 11 hearing).                                 We therefore

find   that     Loney’s        guilty   plea       was    knowingly       and    voluntarily

entered.        Additionally, we find that the appeal waiver, which

was contained in the plea agreement and which Loney acknowledged

during    the    Rule     11    hearing,     is     valid    and     enforceable.          See

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

(upholding       appeal     waiver      in    plea        agreement    if       court   fully

questions       defendant       about     waiver         during    Rule    11     colloquy);

United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991)

(same).         Accordingly,        any      challenge        to     Loney’s       105-month

sentence is waived.

              Loney also contends his attorney was ineffective with

respect to his plea.              Because the record does not conclusively

demonstrate ineffective assistance, this claim should be raised

                                               4
in a 28 U.S.C.A. § 2255 (West Supp. 2009) motion rather than on

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

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

(4th Cir. 1991).

           Accordingly,      we      grant      the    Government’s      motion     to

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

Loney’s claims regarding the validity of his Rule 11 hearing 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.          As   required    by     Anders,   we     have

reviewed the entire record and have found no meritorious issues

for appeal.    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 renew his motion 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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