                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4509



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


CARLOS HUMBERTO ZAMARRIPA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Terrence W. Boyle,
District Judge. (5:06-cr-00220-BO)


Submitted:   May 20, 2008                   Decided:   June 5, 2008


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Sue Genrich Berry, BOWEN & BERRY, PLLC, Wilmington, North Carolina,
for Appellant.    Anne Margaret Hayes, Jennifer P. May-Parker,
Stephen Aubrey West, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In accordance with a written plea agreement, Carlos

Humberto Zamarripa pled guilty to conspiracy to distribute more

than five kilograms of cocaine, in violation of 21 U.S.C. § 846

(2000), and was sentenced to 400 months in prison.                       Zamarripa

appealed.      His attorney filed a brief pursuant to Anders v.

California,    386    U.S.    738    (1967),    stating    that    there   are   no

meritorious issues for appeal but contending that the sentence is

procedurally unreasonable.           Zamarrippa filed a pro se supplemental

brief claiming prosecutorial misconduct, ineffective assistance of

counsel, and various sentencing errors.

            The United States moved to dismiss the appeal based on

Zamarripa’s waiver of his appellate rights.               Zamarripa opposed the

motion.     We deny the motion insofar as it pertains to Zamarripa’s

claims of prosecutorial misconduct and ineffective assistance of

counsel. We find that his claim of prosecutorial misconduct has no

merit.    Although the waiver permits Zamarripa to raise ineffective

assistance     on    direct    appeal,     we   conclude     that    ineffective

assistance does not appear on the face of the record.                We grant the

motion to dismiss the appeal with respect to the sentencing issues,

which lie within the scope of the appellate waiver. Finally, after

a   thorough   review    of    the    entire    record,     we    have   found   no

meritorious issues for appeal.           Accordingly, we affirm in part and

dismiss in part.


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                                   I

          Zamarripa signed a written plea agreement in which he

agreed:

     to waive knowingly and expressly all rights, conferred by
     18 U.S.C. § 3742, to appeal whatever sentence is imposed,
     including any issues that relate to the establishment of
     the advisory Guideline range, reserving only the right to
     appeal from a sentence in excess of the advisory
     Guideline range, and further to waive all rights to
     contest the conviction or sentence in any post-conviction
     proceeding, including one pursuant to 28 U.S.C. § 2255,
     excepting an appeal or motion based upon grounds of
     ineffective assistance of counsel or prosecutorial
     misconduct not known to the Defendant at the time of the
     Defendant’s guilty plea.

The plea agreement set forth the maximum sentence that Zamarripa

faced and made clear that the sentencing guidelines applied.

          At arraignment, the court summarized the plea agreement,

including the waiver provision.    Zamarripa informed the court that

the summary was correct.    The court ascertained that Zamarripa

understood the charge against him, the applicable penalty, and the

rights he waived by pleading guilty.    Zamarripa represented to the

court that he and his attorney had thoroughly discussed his case

and that he had voluntarily entered into the plea agreement.

          Zamarripa’s probation officer prepared a presentence

report.   At sentencing, the district court overruled Zamarripa’s

objection to a recommended enhancement for possession of a firearm.

Zamarripa’s total offense level was 41, his criminal history

category was I, and his advisory guideline range was 324-405 months

in prison.    The maximum term of imprisonment to which he was

                                  -3-
subject was life in prison.       See 21 U.S.C. § 841(b)(1)(A) (2000).

The district court sentenced Zamarripa to 400 months in prison.



                                      II

           We   begin   with   the   motion   to   dismiss   based    on   the

appellate waiver.       In United States v. Blick, 408 F.3d 162 (4th

Cir. 2005), we considered whether a waiver-of-appellate-rights

provision in a plea agreement was enforceable after the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005).

We employed a two-part analysis to decide the issue.                First, we

considered whether the waiver was knowing and voluntary.               Blick,

408 F.3d at 169.    After deciding that it was, we considered whether

the issues raised on appeal were within the scope of that motion.

Because they were, we dismissed the appeal.          Id. at 169-73.

           We review de novo the validity of a waiver.                 United

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).                 Whether a

waiver of the right to appeal is knowing and intelligent depends

upon the facts and circumstances surrounding its making, including

the   defendant’s   background,      experience,   and   conduct.      United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992).            A waiver is

ineffective if the district court fails to question the defendant

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

1991), unless other evidence in the record shows that the waiver

was informed and voluntary.       Davis, 954 F.2d at 186.


                                     -4-
           Here, Zamarripa’s waiver was knowing and voluntary. When

he entered his plea, he was twenty-six years old and had a college

degree.   The waiver-of-appellate-rights provision was set forth in

a separate paragraph of the plea agreement and was specifically

addressed at arraignment.

     Zamarripa’s plea agreement permits him to raise claims of

prosecutorial misconduct and ineffective assistance of counsel. We

deny the motion to dismiss insofar as it relates to those claims.

With respect to prosecutorial misconduct, Zamarripa contends that

the Government breached the plea agreement when it failed at

sentencing to make a motion pursuant to U.S. Sentencing Guidelines

Manual § 5K1.1 (2006). This claim lacks merit because the plea

agreement contained no such promise by the Government.                Second,

although Zamarripa did not waive his right to raise ineffective

assistance   on   appeal,   we   will   not   address   the   claim   because

ineffectiveness does not conclusively appear from the face of the

record.   See United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir.), cert. denied, 546 U.S. 1203 (2006).

           The remainder of the claims raised in the briefs relate

to sentencing.     The appellate waiver permits an appeal of the

sentence only if it is “in excess of the applicable advisory

Guideline range.”     Because Zamarripa’s 400-month sentence falls

within the properly calculated advisory guideline range of 324-405

months,   appellate   review     of   his   sentence   is   foreclosed.   We


                                      -5-
therefore grant the motion to dismiss insofar as it relates to

sentencing issues.

     In accordance with Anders, we have reviewed the entire record

for meritorious issues and have found none.    This court requires

counsel to inform her 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, counsel may then move in this

court to withdraw from representation. Counsel’s motion must state

that a copy of the motion was served on the client.    We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before us and argument would

not aid the decisional process.



                                                 AFFIRMED IN PART;
                                                 DISMISSED IN PART




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