                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4380


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LARRY WAYNE AIKEN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:14-cr-00022-RLV-DSC-1)


Submitted:   February 29, 2016                Decided:    March 22, 2016


Before KING and      FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
Carolina, for Appellant.    Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Larry Wayne Aiken pled guilty, pursuant to a written plea

agreement, to possession of child pornography, in violation of

18 U.S.C. § 2252A(a)(5)(B) (2012).                   The district court sentenced

Aiken to the statutory mandatory minimum sentence of 120 months’

imprisonment.           On    appeal,    Aiken       argues   that    he   was    denied

effective       assistance      of   counsel.          The    Government      seeks     to

enforce the appellate waiver provision of the plea agreement and

has moved to dismiss Aiken’s appeal.                     In response, Aiken does

not challenge the validity of the waiver, see United States v.

Copeland, 707 F.3d 522, 528 (4th Cir. 2013), but asserts that

the   issue     he    raises    on   appeal     is    outside   the    scope      of   the

waiver, see United States v. Archie, 771 F.3d 217, 221 (4th Cir.

2014), cert. denied, 135 S. Ct. 1579 (2015).

       In his plea agreement, Aiken agreed to waive his right to

appeal his conviction and sentence but reserved his right to

raise on appeal issues of ineffective assistance of counsel or

prosecutorial misconduct.               Thus, Aiken’s claim that counsel was

ineffective at sentencing is outside the scope of the waiver and

is    subject    to    appellate     review.          Accordingly,      we    deny     the

Government’s         motion    to    dismiss.          Nevertheless,         unless    an

attorney’s ineffectiveness conclusively appears on the face of

the   record,        ineffective     assistance       claims    generally        are   not

addressed on direct appeal.               United States v. Benton, 523 F.3d

                                            2
424, 435 (4th Cir. 2008).            Instead, such claims should be raised

in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in

order to permit sufficient development of the record.                          United

States    v.   Baptiste,    596     F.3d   214,   216    n.1   (4th    Cir.    2010).

Because    the     record     here     does    not      conclusively     establish

ineffective      assistance    of     counsel,    we    conclude      that    Aiken’s

claim should be raised, if at all, in a § 2255 motion.                       Thus, we

decline to review this claim on direct appeal.

     Accordingly, we dismiss the appeal.                 We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                                         DISMISSED




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