                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-5168


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT PAUL HADE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:10-cr-00786-RDB-1)


Submitted:   May 11, 2012                    Decided:   May 17, 2012


Before DAVIS, KEENAN, and THACKER, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Barbara   E.  Kittay,   Kensington, Maryland, for   Appellant.
Jonathan Biran, Assistant United States Attorney, Kristi Noel
O'Malley, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Robert       Paul       Hade    pled     guilty       pursuant            to    a    plea

agreement to sexual exploitation of a minor for the purpose of

producing         child    pornography,          in        violation          of    18       U.S.C.A.

§ 2251(a) (West Supp. 2011), and was sentenced to a total term

of 240 months in prison.                   Counsel has filed an appeal pursuant

to   Anders       v.    California,        386   U.S.       738   (1967),          in    which      she

states     that        there     are    no     viable       grounds       for        appeal,        but

nevertheless           raises    as    a     possible       issue       for    review         whether

§ 2251(a) is, as applied to Hade, an unconstitutional exercise

of Congress’s power under the Commerce Clause.                                Counsel has also

filed a motion to withdraw as counsel for Hade.                                    Hade asks that

he be granted new counsel and an extension on appeal, but has

filed a pro se supplemental brief in which he raises an issue

similar to the one raised in the Anders brief.                                     The Government

moves to dismiss the appeal, in part, based on the appellate

waiver in Hade’s plea agreement.                       We deny counsel’s motion to

withdraw      and       Hade’s     requests          for    new     counsel          and     for     an

extension on appeal, and we affirm in part and dismiss in part.

              A    defendant      may      waive      the    right      to     appeal        if    that

waiver   is       knowing       and     intelligent.              See    United          States      v.

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).                                 Our independent

review     of      the     record       supports           the    conclusion            that       Hade

voluntarily        and     knowingly         waived        his    right        to       appeal     his

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conviction    and    sentence   to    the      extent    that      the    sentence     was

within or below a Guidelines range calculated based on a total

offense    level    of   thirty-seven.          Thus,    we       conclude    that     the

waiver is valid and enforceable.

            However,     even   a    valid      waiver       does    not     waive    all

appellate claims.        Specifically, a valid appeal waiver does not

preclude a challenge to a sentence on the ground that it exceeds

the    statutory     maximum    or    is       based    on    a     constitutionally

impermissible factor such as race, arises from the denial of a

motion to withdraw a guilty plea based on ineffective assistance

of counsel, or relates to claims concerning a violation of the

Sixth Amendment right to counsel in proceedings following the

guilty plea.        See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th

Cir.   1993).       Moreover,   the    appellate        waiver       in    Hade’s     plea

agreement did not waive any challenges he may have about his

sentence    if   that    sentence     was      based    on    a     Guidelines       range

calculated based on a total offense level greater than thirty-

seven.     Hade’s 240-month sentence is within the 210-to-262-month

Guidelines range that was calculated based on a total offense




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level of thirty-seven, and he raises no claims that fall outside

the scope of his appellate waiver. *

               Accordingly,     we    grant    the   Government's     motion      to

dismiss    and    dismiss     the    appeal,    in   part.    Although      we   are

charged    under    Anders     with   reviewing      the   record   for    unwaived

error, we have reviewed the record in this case and have found

no unwaived meritorious issues for appeal.                   We therefore deny

counsel’s motion to withdraw at this time, deny Hade’s requests

for new counsel and for an extension on appeal, and dismiss the

appeal in part and affirm in part.                   This court requires that

counsel inform Hade, in writing, of his right to petition the

Supreme Court of the United States for further review.                     If Hade

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, counsel may then move this

court    for    leave   to    withdraw   from    representation.          Counsel’s

motion must state that a copy thereof was served on Hade.                        We


     *
       We nonetheless conclude that the issue raised in Hade’s
Anders and pro se supplemental briefs is without merit.     See
United States v. Malloy, 568 F.3d 166, 179-80 (4th Cir. 2009)
(finding that § 2251(a) as applied to defendant was a valid
exercise of Congress’s Commerce Clause power where “there was
unquestionably ‘local’ production of child pornography with a
video camera and videotape that had traveled in foreign
commerce”).   Moreover, to the extent that Hade suggests that
counsel provided ineffective assistance, we conclude that
ineffective assistance does not conclusively appear on the
record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006).



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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.



                                                    AFFIRMED IN PART;
                                                    DISMISSED IN PART




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