                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4834


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSEPH ALAN LEONARD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (7:12-cr-00040-BR-1)


Submitted:   October 24, 2013             Decided:   December 4, 2013


Before SHEDD, DUNCAN, and WYNN, Circuit Judges.


Affirmed in part, dismissed in part by unpublished per curiam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


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

               Joseph       Alan    Leonard       appeals          the   210-month        sentence

imposed       by     the    district       court        following        his      guilty        plea,

pursuant to a written plea agreement, to deception in connection

with the sale of unregistered securities, in violation of 15

U.S.C.A. § 78j(b) (West Supp. 2013), 15 U.S.C.A. § 78ff (2009),

and 17 C.F.R. 240.10b-5 (2013).                         On appeal, Leonard’s counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),       asserting      that    there        are       no    meritorious      grounds        for

appeal    but       questioning          whether       the       sentence    imposed       by     the

district court was substantively reasonable.                             The Government has

filed     a    motion       to     dismiss    Leonard’s             appeal       based     on     the

appellate waiver provision in the plea agreement.                                        Leonard’s

counsel opposes the Government’s motion as premature.                                      Leonard

filed a pro se supplemental brief, in which he argues that the

sentence imposed was procedurally and substantively unreasonable

and   that     his     appellate         waiver       was    not    knowing      and     voluntary

because the court failed to fully question his understanding of

the waiver provision and because counsel was ineffective for

failing       to    advise    him    of     the       consequences          of   the     appellate

waiver.        We grant in part the Government’s motion and dismiss

Leonard’s          appeal    of    his    sentence,          and    we   deny     in     part     the

Government’s motion and affirm Leonard’s conviction.



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              We review de novo a defendant’s waiver of appellate

rights.       United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).       “A defendant may waive his right to appeal if that

waiver is the result of a knowing and intelligent decision to

forgo the right to appeal.”                   United States v. Amaya-Portillo,

423   F.3d    427,      430   (4th    Cir.     2005)     (internal     quotation   marks

omitted); see United States v. General, 278 F.3d 389, 400 (4th

Cir. 2002) (providing standard).                     The district court’s failure

to specifically question the defendant’s understanding of the

waiver provision is relevant to, but not dispositive of, the

question      of   whether     the        waiver   was      knowing   and   intelligent.

General, 278 F.3d at 400.                  Additionally, while “a waiver of the

right to appeal may not be knowing and voluntary if tainted by

the   advice       of     constitutionally           ineffective       trial    counsel”

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005),

such ineffective assistance must “conclusively appear[] from the

record”      for   the    claim      to    proceed     on    direct   appeal.      United

States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).

              Our review of the record leads us to conclude that the

present record does not conclusively show that counsel rendered

ineffective assistance, and that Leonard’s waiver of appellate

rights was knowing and voluntary.                    Thus, the waiver is valid and

enforceable.



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              We will enforce a valid waiver so long as “the issue

being appealed is within the scope of the waiver.”                        Blick, 408

F.3d at 168.         We conclude that the sentencing issues raised in

both the Anders brief and the pro se supplemental brief fall

within the scope of the appellate waiver provision, because the

210-month sentence imposed by the district court was within the

Guidelines         range     established       at    the    sentencing       hearing.

Therefore, we grant in part the Government’s motion to dismiss

and dismiss this portion of the appeal.

              The waiver provision does not, however, preclude our

review   of    Leonard’s      conviction       pursuant    to   Anders.      We    have

reviewed the plea colloquy for plain error and have found none.

See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002)

(providing standard); see also United States v. Olano, 507 U.S.

725, 732 (1993) (detailing plain error standard).

              In accordance with Anders, we have reviewed the entire

record and have found no unwaived and potentially meritorious

issues for review.            We therefore grant Leonard’s pro se motion

to supplement the record and affirm Leonard’s conviction.

              This court requires that counsel inform Leonard, in

writing,      of   his     right   to   petition    the    Supreme   Court    of   the

United States for further review.                   If Leonard requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, counsel may move in this court for leave to

                                           4
withdraw from representation.     Counsel’s motion must state that

a copy thereof was served on Leonard.       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.


                                                 AFFIRMED IN PART;
                                                 DISMISSED IN PART




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