                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4340


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PATRICK RONALD SILVA,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:14-cr-00026-MR-DLH-1)


Submitted:   February 29, 2016            Decided:   April 6, 2016


Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Patrick Ronald Silva pleaded guilty, pursuant to a plea

agreement, to coercing a minor to produce child pornography, in

violation of 18 U.S.C. § 2251(a) (2012).                    He was sentenced to

262 months’ imprisonment.             On appeal, Silva argues that trial

counsel   was    ineffective     at     sentencing     in    failing       to   present

certain arguments or in failing to file a motion for a downward

variance or departure.

      Silva pled guilty pursuant to a written plea agreement,

wherein   he    waived    his   appellate     rights    except       for    claims   of

ineffective assistance of counsel and prosecutorial misconduct.

Silva has not challenged the validity of the waiver nor has the

Government sought to enforce the waiver.                    Accordingly, Silva’s

ineffective assistance of counsel claim is reviewable by this

court.

      Silva asserts that counsel provided ineffective assistance

in failing to present certain arguments at sentencing.                            This

issue falls outside the appellate waiver provision.                        However, as

a general rule, claims of ineffective assistance of counsel must

be raised in a 28 U.S.C. § 2255 (2012) motion rather than on

direct    appeal,     unless      the     appellate         record     conclusively

demonstrates ineffective assistance.              United States v. Benton,

523 F.3d 424, 435 (4th Cir. 2008).             Because the record here does

not   conclusively       establish    that    counsel       was   constitutionally

                                          2
ineffective in presenting sentencing arguments, the claim is not

subject to review on direct appeal.

     Accordingly, we dismiss the appeal of Silva’s sentence and

otherwise   affirm   the    judgment       of   the   district      court.     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




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