                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4651


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TERRY LAMONT COBB,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:07-cr-01105-HMH-1)


Submitted:    October 19, 2009              Decided:   November 4, 2009


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam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


Darren S. Haley, HALEY & PARKER, P.A., Greenville, South
Carolina, for Appellant.      W. Walter Wilkins, United States
Attorney, A. Lance Crick, Jimmie Ewing, Assistant United States
Attorneys, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Terry    Lamont     Cobb    pled      guilty,     pursuant      to    a   plea

agreement, to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2006).                        He received a 120-

month sentence.         On appeal, Cobb argues that the district court

erred    by   improperly      calculating          his     offense    level       and   that

counsel provided ineffective assistance at sentencing by failing

to object to the improper calculation.

              The     Government        has     moved     to   dismiss      the    appeal,

arguing it is barred by the appellate waiver included in the

plea agreement.         Cobb responds that because the district court

failed to specifically question him about the appellate waiver

during the Fed. R. Crim. P. 11 hearing, his guilty plea was not

knowingly and voluntarily made.                 We disagree.

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

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

Wiggins,      905    F.2d   51,    53    (4th      Cir.    1990).      We    review      the

validity of an appellate waiver de novo, and will enforce the

waiver if it is valid and the issue appealed is within the scope

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

2005).     An appeal waiver is valid if the defendant knowingly and

intelligently agreed to its terms.                        Id. at 169.         “An appeal

waiver   is    not    knowingly     or        voluntarily      made   if   the     district

court fails to specifically question the defendant concerning

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the waiver provision . . . during the [Fed. R. Crim. P.] 11

colloquy and the record indicates that the defendant did not

otherwise        understand       the     full       significance         of       the     waiver.”

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

(internal quotation marks and citation omitted; emphasis added).

               Ultimately,         the     validity          of     a     plea          waiver    is

“evaluated by reference to the totality of the circumstances.”

United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).                                       We

have     found    that,      when    an     appellate         waiver          is    “unambiguous

and . . .      plainly       embodied       in       the    plea    agreement,”            and    the

defendant is competent, represented by counsel, and questioned

about     whether       he    understands            the    provisions             of    the     plea

agreement, the defendant knowingly and intelligently waives his

right    to    appeal      his    sentence,          even   where       the    waiver       is    not

specifically mentioned at the Rule 11 hearing.                                     General, 278

F.3d at 400-01.

               Here, the Rule 11 hearing established that Cobb was

forty-one years old and had completed high school.                                  The language

of the appellate waiver is clear and unambiguous--Cobb “waive[d]

the right to contest either the conviction or sentence in any

direct    appeal      or     other       post-conviction            action,”            except   for

claims    of     ineffective        assistance         of    counsel      or       prosecutorial

misconduct.        Cobb stated that he had adequate time to discuss

his    case    with   his        attorney    and       that    he       was    satisfied         with

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counsel’s       representation.           Because     nothing        in     the    record

indicates that Cobb failed to understand the full significance

of the appellate waiver, we find that Cobb’s decision to waive

his right to appeal was both knowing and intelligent.                              Cobb’s

claim that the district court improperly calculated his base

offense   level       falls   squarely      within    the     broad       scope   of   the

appellate       waiver     and      is    barred     from     review        on    appeal.

Accordingly,      we   grant     the     Government’s       motion    to    dismiss      in

part, and dismiss the appeal to the extent Cobb challenges his

sentence.

            Cobb’s second issue, that counsel was ineffective for

failing to challenge the calculation of his base offense level,

is not within the scope of the waiver, and we deny the motion to

dismiss    as    to    this    claim.       However,      claims      of    ineffective

assistance of counsel generally are not cognizable on direct

appeal.     United States v. King, 119 F.3d 290, 295 (4th Cir.

1997).    Rather, to allow for adequate development of the record,

a defendant must ordinarily bring such claims in a 28 U.S.C.A.

§ 2255 (West Supp. 2009) motion, unless the appellate record

conclusively      establishes       counsel’s      ineffectiveness.              See   id.;

United    States      v.   Hoyle,    33    F.3d    415,     418   (4th     Cir.    1994).

Because this appellate record does not conclusively establish

that   counsel     was     constitutionally        ineffective        in    failing      to



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object to Cobb’s base offense level, the claim is not subject to

review on direct appeal.

               Accordingly,    we   grant      the   Government’s      motion     to

dismiss in part and deny it in part.                 We dismiss the appeal of

Cobb’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.

                                                               AFFIRMED IN PART
                                                          AND DISMISSED IN PART




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