                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4099


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTWAN JORDAN, a/k/a Tweety Bird, a/k/a Bird,

                Defendant - Appellant.



                            No. 10-4212


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PERCELL BURROWS, a/k/a Light,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Newport News.     Jerome B. Friedman,
Senior District Judge. (4:08-cr-00147-JBF-FBS-7; 4:08-cr-00147-
JBF-FBS-5)


Submitted:   July 1, 2011                 Decided:   July 12, 2011


Before WILKINSON, MOTZ, and KING, Circuit Judges.
No. 10-4099 dismissed; No. 10-4212 affirmed by unpublished per
curiam opinion.


Jeffrey M. Brandt, ROBINSON & BRANDT, PSC,   Covington, Kentucky;
Jane C. Norman, BOND & NORMAN, Washington,    DC, for Appellants.
Neil H. MacBride, United States Attorney,    Howard J. Zlotnick,
Richard D. Cooke, Assistant United States    Attorneys, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Antwan Jordan, pursuant to a written plea agreement,

and Percell Burrows, without a plea agreement, each pled guilty

to   conspiracy       to     possess     with   intent   to      distribute        five

kilograms     or     more    of   cocaine,      in   violation       of     21   U.S.C.

§§   841(a)(1), 846 (2006).            Jordan was sentenced to 168 months’

imprisonment,        and     Burrows     was    sentenced      to     360        months’

imprisonment.

            In these consolidated appeals, Jordan argues that he

should be relieved of the appellate waiver in his plea agreement

because the 168-month sentence is unreasonable and enforcing the

waiver under these circumstances would result in a miscarriage

of   justice.        The    Government    responds    that    the    appeal      waiver

should be enforced.           Burrows argues (1) the amendment to U.S.

Sentencing Guidelines Manual § 2D1.1(a)(5), (b)(15) directed by

Chapter Seven of the Fair Sentencing Act retroactively operates

to reduce his base offense level from thirty-eight to thirty-two

and he is entitled to be resentenced; (2) the November 1, 2010,

amendment       to     USSG       § 5H1.4       (“Amendment         739”)        applies

retroactively to reduce his sentence based on his abuse of drugs

and alcohol because it is a clarifying amendment; (3) his plea

was not knowing and voluntary because the district court did not

advise him that he faced a sentence of 360 months’ to life

imprisonment; (4) he received ineffective assistance of counsel

                                            3
because counsel failed to obtain a written plea agreement on his

behalf   explaining          the     Government’s         position           as    to       the   drug

weight calculation and stating his Guidelines range; (5) the

district court erred in calculating the drug weight attributable

to him; and (6) the district court erred by denying him an

adjustment       for     acceptance         of       responsibility.                   We     dismiss

Jordan’s appeal, and affirm Burrows’ conviction and sentence.

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

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

Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                                       We review the

validity of an appellate waiver de novo and will uphold a waiver

of appellate rights if the waiver is valid and the issue being

appealed is covered by the waiver.                       United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).                       Our review of the record leads

us to conclude that Jordan validly waived the right to appeal

his sentence, and the issues that he seeks to raise on appeal

fall within the scope of the waiver.

            We       also     find     without          merit       Jordan’s        claim         that

enforcement      of     the    waiver       will      result        in   a    miscarriage           of

justice.         A    miscarriage          of    justice       in    the      context          of   an

appellate    waiver         occurs    only       when    the     resulting          sentence        is

based on consideration of an impermissible factor such as race,

ineffective assistance of counsel in connection with the waiver,

a   sentence         exceeding       the        statutory       maximum,          or        otherwise

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unlawful waiver that seriously affects the fairness, integrity

or public reputation of judicial proceedings.                   United States v.

Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004).                      Jordan makes no

such showing here.          Accordingly, we uphold Jordan’s appellate

waiver and dismiss his appeal.

            Burrows argues that two of the 2010 amendments to the

U.S. Sentencing Guidelines Manual, effective November 1, 2010,

apply retroactively to reduce his sentence.                Burrows argues that

the Amendment 748 to USSG § 2D1.1 (a)(5), (b)(15) as directed by

Chapter Seven of the Fair Sentencing Act, applies retroactively

to reduce his base offense level from thirty-eight to thirty-

two.     In support, Burrows notes that Chapter Seven directs the

U.S. Sentencing Commission to amend the Sentencing Guidelines to

ensure    that    a   defendant   who     is     subject   to    a    minimal     role

adjustment is sentenced using a base offense level of no more

than    thirty-two.        Burrows    claims      that   because      he    played   a

minimal role in the drug conspiracy, he should be resentenced

using a base offense level of thirty-two.                  Burrows also argues

that Amendment 739, which amended USSG § 5H1.4 to allow for a

departure based on severe drug abuse or dependence, also applies

retroactively and provided a ground for the court to depart.

Because Burrows was sentenced in February 2010, neither of these

amendments    were    available      to   him.     Burrows      argues     that   this

Court    should   vacate    his   sentence       and   remand    to   the   district

                                          5
court so that he can make a record to show that he is eligible

to receive the benefit of these amendments.

              The   determination       of       whether    an   amendment      to     the

Sentencing Guidelines applies retroactively to cases pending on

direct appeal turns on whether the amendment is a clarifying

amendment or a substantive one.                    United States v. Goines, 357

F.3d 469, 474 (4th Cir. 2004).                   A clarifying amendment is given

retroactive effect, while a substantive amendment is not.                              Id.

To distinguish between the two, we have defined a clarifying

amendment      as   one    that    “changes       nothing   concerning        the    legal

effect    of    the       guidelines,    but       merely    clarifies        what     the

Commission deems the guideline to have already meant.”                              United

States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995).                               On the

other hand, a substantive amendment is one that “has the effect

of changing the law in this circuit.”                    Id. at 1110.     We conclude

that    the    amendments     in    question       are    substantive    and    do     not

retroactively apply to Burrows’ sentence.

              We next turn to Burrows’ challenge to his guilty plea.

Because Burrows did not move in the district court to withdraw

his guilty plea, we review the Rule 11 hearing for plain error.

United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).

After    thoroughly        reviewing    the        transcript    of     the    Rule     11

hearing, we discern no plain error.



                                             6
            Burrows       next   asserts       that   he     received       ineffective

assistance of counsel because counsel failed to obtain a written

plea agreement on his behalf.                  However, unless an attorney’s

ineffectiveness      is    conclusively        apparent      on    the   face    of   the

record,     ineffective      assistance        of     counsel       claims      are   not

generally addressed on direct appeal.                  United States v. Benton,

523 F.3d 424, 435 (4th Cir. 2008); United States v. Richardson,

195 F.3d 192, 198 (4th Cir. 1999) (providing standard and noting

that ineffective assistance of counsel claims generally should

be raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2011)).

We   find     that    counsel’s        alleged        ineffectiveness           is    not

conclusively apparent on the face of this record and decline to

consider this claim on direct appeal.

            Burrows next argues that the district court erred in

calculating the drug weights attributable to him.                            A district

court’s finding regarding drug weights is factual in nature and

is   therefore    reviewed       for    clear       error.         United    States    v.

Fletcher, 74 F.3d 49, 55 (4th Cir. 1996).                         In conducting this

review,   this   Court      gives   due    regard      to    the    district     court's

opportunity to judge the credibility of witnesses.                          18 U.S.C. §

3742(e)   (2006).         Credibility     determinations           therefore     receive

deference unless they are without support in the record.                          United

States v. Brown, 944 F.2d 1377, 1379-80 (7th Cir. 1991).                              Our

review of the record leads us to conclude that the district

                                           7
court    did     not    clearly        err   in   calculating      the    drug    weight

attributable to Burrows.

               Nor did the district court err in denying Burrows an

adjustment for acceptance of responsibility.                    A district court’s

determination regarding acceptance of responsibility is factual

in nature and will not be reversed unless clearly erroneous.

United States v. Hargrove, 478 F.3d 195, 198 (4th Cir. 2007).

Under USSG § 3E1.1 cmt. n.1(a), a defendant need not volunteer

or     admit    to     relevant        conduct    to   obtain      a   reduction    for

acceptance of responsibility, but the reduction is not warranted

when     a     defendant     falsely         denies,   or    frivolously     contests

relevant conduct that the court determines to be true.                               See

Elliott v. United States, 332 F.3d 753, 766 (4th Cir. 2003)

(affirming        the      denial       of     reduction     for       acceptance     of

responsibility where defendant falsely denied relevant conduct).

Our review of the record leads us to conclude that the district

court did not clearly err in denying Burrows an adjustment for

acceptance of responsibility, as Burrows frivolously contested

the drug weight that was persuasively established by several

witnesses.

               Accordingly,       we    dismiss     Jordan’s    appeal     and    affirm

Burrows’       conviction     and       sentence.       We     dispense    with     oral

argument because the facts and legal contentions are adequately



                                              8
presented in the materials before the court and argument would

not aid the decisional process.

                                         No. 10-4099 DISMISSED
                                          No. 10-4212 AFFIRMED




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