                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-5006


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

AKINYEMI OLUFEMI BAMISAIYE, a/k/a Yemi Olufemi Bamisaiye,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(8:08-cr-00281-RWT-2)


Submitted:    February 15, 2011            Decided:   March 18, 2011


Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


G. Godwin    Oyewole, LAW OFFICE OF G. GODWIN OYEWOLE, McLean,
Virginia,    for Appellant. Rod J. Rosenstein, United States
Attorney,    David I. Salem, Assistant United States Attorney,
Greenbelt,   Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Akinyemi Olufemi Bamisaiye pled guilty, pursuant to a

written plea agreement, to one count of mail fraud in violation

of 18 U.S.C. § 1341 (2006), and one count of money laundering in

violation      of       18   U.S.C.       § 1957      (2006).        The      district         court

calculated         Bamisaiye’s           total   offense          level      under       the    U.S.

Sentencing        Guidelines         Manual      (2008)      at    23     and      his    criminal

history in Category I, resulting in a Guidelines imprisonment

range    of       46    to    57    months.          The     district        court       sentenced

Bamisaiye to 52 months’ imprisonment.                              Bamisaiye appeals and

asserts that the appeal waiver in his plea agreement is not

enforceable        because         his    plea   of     guilty      was      not     knowing     and

voluntary.         The Government asserts that the appeal waiver of his

right to appeal his sentence is valid and enforceable and bars

consideration of his sentencing claims.                           We dismiss in part and

affirm in part.

              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).                                 To determine

whether a waiver is knowing and intelligent, this court examines

“the totality of the circumstances, including the experience and

conduct of the accused, as well as the accused’s educational

background         and       familiarity         with       the    terms        of       the   plea



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agreement.”      United States v. General, 278 F.3d 389, 400 (4th

Cir. 2002) (internal quotation marks omitted).

           Generally,          if     the    district     court   fully     questions    a

defendant at the Fed. R. Crim. P. 11 proceeding regarding the

waiver of his right to appeal, the waiver is both valid and

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

(4th Cir. 2005).          However, an appeal waiver does not bar the

appeal of a sentence imposed in excess of the statutory maximum

or a challenge to the validity of a guilty plea.                            See General,

278 F.3d at 399 n.4.             Nor does it bar an appeal raising issues

not within the scope of the waiver.                   See United States v. Blick,

408 F.3d 162, 168 (4th Cir. 2005).                        Our review of the record

leads us to conclude that Bamisaiye knowingly and voluntarily

waived   the    right     to    appeal       his   sentence. *       Accordingly,      the

waiver   is     valid.         We     have    reviewed       Bamisaiye’s      claims    of

sentencing error and conclude that they fall within the waiver’s

scope.    Accordingly,           we    dismiss      the     appeal   with    respect    to

Bamisaiye’s claims challenging his sentence.

               Although        Bamisaiye’s         appeal    waiver    insulates       his

sentence from appellate review, the waiver does not preclude our


     *
       Pursuant to the plea agreement’s appeal waiver, Bamisaiye
agreed to waive his right to appeal from any sentence within or
below the advisory Guidelines range resulting from an adjusted
offense level of 23.



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consideration         of   any     challenges        to   the     validity     of     his

conviction.          Bamisaiye     contends     that      his    conviction    was     in

violation of due process due to several instances of ineffective

assistance      of    counsel.        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).                          Rather, to

allow for adequate development of the record, a defendant must

bring his claims in a 28 U.S.C.A. § 2255 (West Supp. 2010)

motion.   Id.        An exception exists where the record conclusively

establishes          ineffective       assistance.              United     States      v.

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

record in this case does not conclusively establish ineffective

assistance of counsel, we find that Bamisaiye’s claims in this

regard are not cognizable in this appeal.

           Accordingly,          we    affirm    Bamisaiye’s        conviction        and

dismiss   the    appeal     of   his    sentence.         We    dispense     with   oral

argument because the facts and legal contentions are adequately

expressed in the materials before the court and argument would

not aid the decisional process.

                                                                  DISMISSED IN PART;
                                                                    AFFIRMED IN PART




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