                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4228



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus

GREGORY JAMES BERRY,
                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00193-H)


Submitted:   October 31, 2007          Decided:     December 11, 2007


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Gregory     James    Berry    pled   guilty   to    distribution    of

cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000) (Count Two),

and possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C.A. §§ 922(g)(1), 924 (West 2000 & Supp. 2007)

(Count Three).            He was sentenced within his advisory guideline

range to concurrent terms of fifty-seven months in prison.

               On appeal, his attorney has filed an Anders* brief,

noting that, because Berry waived his right to appeal his sentence

in his plea agreement, there were no meritorious issues on appeal.

Nonetheless, the Anders brief questions whether Berry’s sentence
was    greater      than    necessary       to   comply   with    the   purposes   of

sentencing under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).

Berry filed a pro se supplemental brief arguing that he was denied

effective assistance of counsel at sentencing.                   The Government has

moved to dismiss the appeal based on the appeal waiver.                    We grant

the motion in part and dismiss the appeal with regard to the issue

raised in Berry’s formal brief.              After a review of the record under
Anders, we affirm Berry’s convictions and sentence.
               A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C.A. § 3742 (West 2000 & Supp. 2007).

United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                         Any

such waiver must be made by a knowing and intelligent decision to

forego the right to appeal.               United States v. Broughton-Jones, 71

F.3d       1143,   1146    (4th    Cir.   1995).      Whether     a   defendant    has

       *
        Anders v. California, 386 U.S. 738 (1967).

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effectively waived his right to appeal is an issue of law we review

de novo.    United States v. Marin, 961 F.2d 493, 496 (4th Cir.

1992).

            With regard to the issue raised in the Anders brief, we

grant the Government’s motion to dismiss.     The district court’s

plea colloquy was thorough and substantially conformed to the

dictates of Fed. R. Crim. P. 11.         Moreover, Berry does not

challenge the voluntariness of his waiver. Because Berry knowingly

and voluntarily entered into the plea agreement and the waiver was

reviewed at the plea hearing, the waiver is enforceable.

           The waiver expressly precluded Berry from appealing any

sentence that was within or below the advisory guideline range.

Because the sentence imposed was within the advisory guideline

range, any challenge to the sentence imposed, including the issue

raised in Berry’s Anders brief, falls within the scope of that
waiver.    Accordingly, we grant the Government’s motion to dismiss

Berry’s appeal as to the claim raised in the Anders brief.

           The waiver’s enforceability does not completely dispose
of this appeal, however.      Our interpretation of Berry’s plea

agreement is guided by contract law. United States v. McQueen, 108
F.3d 64, 66 (4th Cir. 1997).       The appellate waiver expressly

permitted an appeal based upon ineffective assistance of counsel or

prosecutorial misconduct not known to Berry at the time of his

guilty plea.    Therefore, the waiver provision does not foreclose

Berry’s right to appeal with respect to such issues, see United

States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993), and we deny the


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Government’s motion as it relates to ineffective assistance or

prosecutorial misconduct.

           In his pro se supplemental brief, Berry claims that

counsel provided ineffective assistance at sentencing.               Claims of

ineffective assistance of counsel are generally not cognizable on

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

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

record, a defendant must bring such claims in a 28 U.S.C. § 2255

(2000) motion.     See id.; United States v. Hoyle, 33 F.3d 415, 418

(4th Cir. 1994). An exception exists where the record conclusively

establishes ineffective assistance.            United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295.              Because

the record does not conclusively show that Berry’s counsel was

ineffective, we decline to consider Berry’s claim on direct appeal.

           In accordance with Anders, we have reviewed the entire

record and found no viable claims of ineffective assistance of

counsel or prosecutorial misconduct that are clear from the record.

Accordingly, we affirm Berry’s convictions and, to the extent of
sentencing challenges outside the scope of the appellate waiver,

his sentence.

           This    court    requires    that    counsel    inform    Berry,   in

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

States for further review.       If Berry requests that a petition be

filed,   but   counsel     believes    that    such   a   petition   would    be

frivolous, then counsel may move in this court for leave to

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

                                      - 4 -
copy thereof was served on Berry.   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.



                                                DISMISSED IN PART;
                                                  AFFIRMED IN PART




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