                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4359


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TORRENCE LASHAWN HOWARD,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:07-cr-00260-FL-1)


Submitted:   October 8, 2010                 Decided:   November 22, 2010


Before MOTZ, GREGORY, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant.        Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Torrence Lashawn Howard appeals the district court’s

judgment entered pursuant to his guilty plea, under a written

plea agreement, to carjacking, in violation of 18 U.S.C. § 2119

(2006), and using, carrying, and brandishing a firearm during

and    in    relation     to     a    crime        of     violence.         18     U.S.C.A.

§ 924(c)(1)(A)(ii) (West Supp. 2010).                         On appeal, Howard claims

that   the    district    court       erred       in    (1)    applying    the   two-level

sentencing     enhancement       pursuant         to     U.S.    Sentencing      Guidelines

Manual      § 3B1.4    (2007);       and   (2)         finding   that     Howard    used    a

juvenile in the commission of the crime under USSG § 3B1.4.                              The

Government filed a motion to dismiss based on an appeal waiver

provision in the plea agreement.                   Howard filed a response to the

motion to dismiss arguing that his waiver was not knowing and

intelligent      and    presenting         for     the     first    time    a    claim     of

ineffective assistance of counsel, which he argues contributed

to his unknowing and unintelligent waiver and places his appeal

outside the scope of the waiver.                         In the alternative, Howard

argues that, even if the waiver is valid, its enforcement would

result in a miscarriage of justice.

               A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006).                          United States v.

Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                               We review the

validity of an appellate waiver de novo and will uphold a waiver

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of appellate rights if the waiver is valid and the issue being

appealed is covered by the waiver.              United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).

           The     issues     raised     in    Howard’s     opening     brief      are

encompassed by the scope of the waiver provision in which Howard

agreed to:

       waive knowingly and expressly the right to appeal
       whatever sentence is imposed on any ground, . . .
       excepting a sentence in excess of the advisory
       guideline range calculated at sentencing and 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.

Howard’s claims of error in sentencing are foreclosed by the

express terms of the waiver, and we dismiss the appeal as to

those claims.

           We      conclude    that      Howard’s    claim       of     ineffective

assistance    of   counsel    is   not    cognizable      on   direct    appeal     as

ineffective      assistance    does      not   conclusively       appear      on   the

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

Cir.   2006).       Furthermore,       enforcement     of      the    valid    waiver

provision does not result in a miscarriage of justice.                             See

United States v. Johnson, 410 F.3d 137, 152 n.2 (4th Cir. 2005);

United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004).

Therefore, we also dismiss Howard’s ineffective assistance of

counsel claim.      We dispense with oral argument because the facts


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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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