                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4613



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


AARON LAMONT DAWKINS,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-01-223-HO)


Submitted:   March 8, 2004                 Decided:   March 16, 2004


Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Camille M. Davidson, THE FULLER LAW FIRM, P.C., Charlotte, 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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Aaron Lamont Dawkins appeals his guilty plea conviction

for one count of attempted murder, in violation of 18 U.S.C. § 1113

(2000). Dawkins’ plea agreement waives all rights to appeal except

the right to appeal from an upward departure or an appeal based

upon grounds of ineffective assistance.             Dawkins now seeks to

appeal his sentence.     The Government has filed a motion to dismiss

the appeal.

             Dawkins   asserts   that    his     trial   counsel    rendered

ineffective assistance, which resulted in an excessive sentence.

To succeed on a claim of ineffective assistance on direct appeal,

a defendant must show conclusively from the face of the record that

counsel provided ineffective representation.             United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).             To establish a

violation of the Sixth Amendment due to ineffective assistance of

counsel, Dawkins must demonstrate that (1) counsel’s representation

fell below an objective standard of reasonableness; and (2) there

is a reasonable probability that he was prejudiced by counsel’s

unprofessional errors. See Strickland v. Washington, 466 U.S. 668,

688,   694   (1984).     We   conclude    that   Dawkins   has     not   shown

conclusively from the face of the record that counsel provided

ineffective representation. Richardson, 195 F.3d at 198. Instead,

he openly concedes that his trial counsel’s actions did not amount

to ineffective assistance.        Accordingly, although we deny the


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motion to dismiss as to this claim, we affirm Dawkins’ conviction

and sentence as to this claim.

          Next, Dawkins contends that the district court erred by

denying him a downward departure pursuant to U.S. Sentencing

Guidelines Manual §§ 5K2.0, 5K2.13 (2002).      However, based on the

waiver contained in Dawkins’ plea agreement, he is precluded from

raising this claim on appeal.         Moreover, the district court’s

decision not to depart from the sentencing guidelines is not

subject to appellate review, as the court clearly understood that

it had the authority to depart, but chose not to.           See United

States   v.   Bayerle,   898   F.2d   28,   30-31   (4th   Cir.   1990).

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

claim.

          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;

                                                     DISMISSED IN PART




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