                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-4097


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DANNY LEE FLECK,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      Andre M. Davis, District Judge.
(1:04-cr-00491-AMD)


Submitted:    March 19, 2009                 Decided:   April 7, 2009


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Donald Kaplan, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Harry Mason Gruber, Andrew
George Warrens Norman, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Danny Lee Fleck appeals his convictions for sexually

exploiting minors and attempting to transport sexually explicit

images    of    minors    and    his    resulting     168-month     sentence.    On

appeal, his counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), concluding that there are no

meritorious issues for appeal but raising claims of ineffective

assistance       of   counsel,         voided   guilty      plea,    and   improper

sentence.         Fleck    has    filed     a   pro    se   supplemental     brief,

rearguing the ineffective assistance claim and challenging the

denial of his motion to suppress and the validity of his guilty

plea.    We affirm. *

               Counsel raises the issue of ineffective assistance of

counsel    but    does    not    direct     the     court’s   attention    to   any

specific portion of the proceeding.                 In his pro se supplemental

brief, Fleck asserts that counsel withdrew a challenge to the

number of victims for sentencing purposes without his consent

and that his attorney pushed him into pleading guilty without

properly explaining the plea.              On direct appeal, we may address

a claim that counsel was ineffective only if the ineffectiveness

     *
       There is some confusion in the record as to the scope of
Fleck’s waiver of appellate rights in his plea agreement.
However, since the Government has not filed a motion to dismiss
based upon the waiver, we will consider the merits of Fleck’s
appeal.



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appears      conclusively        on   the    face     of     the       record.         United

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).                                     In

this case, there is no conclusive indication from the record

that Fleck’s counsel was ineffective.                      Accordingly, this claim

is without merit.

             Fleck     next      asserts      that,    because           his    waiver       of

appellate rights was not knowing or intelligent, his guilty plea

and   plea    agreement       were    void.         While    a     mistake       as    to   an

essential      element      of    a   plea       agreement       can     invalidate         the

agreement, an appellate waiver is not an essential element.                                 See

United    States      v.   Barnes,    83     F.3d    934,    938       (7th     Cir.    1996)

(listing essential elements).                 Even were we to invalidate the

waiver itself (which is an irrelevant issue since we are not

enforcing the waiver due to the Government’s failure to raise

it), permitting an appeal would not require voiding the plea

agreement       and        conviction.              See       United           States        v.

Quirindongo-Collazo,          213     F.    App’x     10,    13        (1st    Cir.     2007)

(voiding     waiver    and    remanding       for    resentencing         but     affirming

conviction); United States v. Rodriguez-Castillo, 147 F. App’x

406, 407-08 (5th Cir. 2005) (finding appellate waiver partially

involuntary        but        affirming          sentence          and         conviction).

Accordingly, any confusion regarding the waiver does not require

vacating Fleck’s conviction.



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            Fleck        asserts   that   the   district   court’s     failure   to

state the Guidelines range at sentencing rendered his sentence

unreasonable.        However, the Guidelines range was stipulated to

prior to sentencing.               In addition, the Government explicitly

outlined the range at sentencing, and Fleck and the district

court   proceeded        with   sentencing      based   upon    that   range.     We

conclude that Fleck’s claim is frivolous.

            In his pro se supplemental brief, Fleck asserts that

his initial stop in the airport which led to his arrest was

improper.        Fleck’s motion to suppress was denied by the district

court, and Fleck’s guilty plea did not reserve the right to

challenge this ruling.             An unconditional plea of guilty waives

subsequent review of most pretrial issues preceding a voluntary

plea.     See United States v. Broce, 488 U.S. 563, 569 (1989);

United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993).

Accordingly, we may not review the denial of Fleck’s motion to

suppress.        See United States v. Bell, 966 F.2d 914, 915-17 (5th

Cir. 1992).

            Finally, Fleck contends that his plea was involuntary

because     he     was    “confused”      and   “pushed    by    the   prosecution

threats.”        At the Fed. R. Crim. P. 11 hearing, Fleck stated that

he “wanted to get this over with,” that he was “ready to accept

this,” and that he had no complaints with his attorney.                          His

counsel informed the court that Fleck was making an intelligent

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and knowing decision to plead guilty but that Fleck was not

happy about it because he felt that the law in question should

not cover his conduct.                Fleck stated that he read the plea

agreement, understood it, and reviewed it with his attorney.                             He

agreed with the Government’s statement of facts, and he conceded

that the Government could prove his guilt regarding each of the

elements of the charges against him.

             Fleck’s assertions on appeal are not supported by the

transcript      of     the    Rule     11   hearing.             Moreover,     they     are

conclusory      and    conflicting.          Accordingly,         we    find   that     his

statements on appeal are insufficient to call into question his

sworn    testimony     at    the     Rule   11    hearing    that       established     his

voluntary and intelligent plea.

             We have carefully reviewed the record in this case in

accordance      with    Anders,       and    we    find     no     reversible     error.

Accordingly, we affirm Fleck’s convictions and sentence.                              This

court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further    review.       If    the    client      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 copy thereof was served on the client.



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            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




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