                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0129n.06

                                          No. 12-4177
                                                                                     FILED
                             UNITED STATES COURT OF APPEALS                       Feb 04, 2013
                                  FOR THE SIXTH CIRCUIT                    DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
LAWRENCE A. CALLOWAY,                               )       OHIO
                                                    )
       Defendant-Appellant.                         )


       Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*


       PER CURIAM. Lawrence A. Calloway, who is represented by counsel, appeals a district

court judgment following his guilty plea to conspiring to commit wire fraud in a mortgage fraud

scheme. See 18 U.S.C. §§ 371, 1343. Under the terms of his plea agreement, Calloway waived his

right to appeal his conviction and sentence. The agreement recommended a total offense level of

twelve, based in part on a loss to the lender in the amount of $294,106. However, the agreement did
not recommend a criminal history category.

       Calloway’s presentence report calculated a loss in excess of $400,000, a total offense level

of thirteen, and a criminal history category of III. Calloway filed a sentencing memorandum

requesting that the district court follow the plea agreement and consider that he was seventy years

old with health concerns.

       At sentencing, the district court adopted the loss calculation from the plea agreement and

granted a government motion to reduce the offense level by two due to Calloway’s substantial


       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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assistance. See USSG § 5K1.1 The result of the loss calculation and downward departure resulted

in an advisory sentencing guidelines range of ten to sixteen months of imprisonment. Upon

consideration of the advisory range and the sentencing factors set forth in 18 U.S.C. § 3553(a), the

district court imposed a split sentence of twelve months, with the first six months to be served in

prison. After release from prison, Calloway would serve six months in home detention, and

simultaneously begin a three-year term of supervised release. The court also imposed restitution in

the amount of $294,160.
       Calloway’s attorney has filed an appellate brief with this Court and has moved to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967). After a review of the record, counsel

expressed the opinion that there were no meritorious grounds for appeal, but nonetheless raised the

issues of whether the appellate waiver was valid, whether the sentence was reasonable, and whether

trial counsel rendered ineffective assistance. Calloway was advised of his right to file a response,

but has not done so.

       Counsel’s motion to withdraw is well taken. Counsel has filed an acceptable Anders brief,

and our full examination of all the proceedings leads us to agree that an appeal would be wholly

without merit. See id. at 744.

       In his plea agreement, Calloway waived his right to appeal his conviction, except upon the
following grounds: 1) ineffective assistance of counsel; 2) prosecutorial misconduct; and 3) his

sentence, but only if the sentence exceeded the statutory maximum or the guidelines range as

calculated in accordance with the plea agreement. A waiver provision in a plea agreement is valid

if it is made knowingly and voluntarily. United States v. Wilson, 438 F.3d 672, 673 (6th Cir. 2006).

A valid waiver bars a defendant from bringing any type of claim not permitted by the agreement.

United States v. Sharp, 442 F.3d 946, 949 (6th Cir. 2006).

       Calloway’s waiver is not invalid. A review of the record reveals that the district court

ensured that Calloway knowingly and voluntarily waived his appellate rights. At the plea hearing,
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                                               -3-

the court reviewed the appellate waiver provision with Calloway and Calloway acknowledged that

he understood the terms and consequences of the waiver. Calloway also confirmed that he had read

his plea agreement, had reviewed the agreement with his lawyer, and was not pleading guilty as a

result of pressure or threats.

        The appellate waiver bars review of Calloway’s sentence. Although the waiver permits

review of a claim of ineffective assistance of counsel, we decline to address the issue at this time.

Claims of ineffective assistance of counsel are disfavored on direct appeal and are more
appropriately brought by filing a 28 U.S.C. § 2255 motion. Massaro v. United States, 538 U.S. 500,

504–07 (2003); United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). Because nothing in the

record suggests that Calloway misunderstood the waiver of his appellate rights and there are no other

issues that may presently be reviewed, we will dismiss the appeal. See United States v. McGilvery,

403 F.3d 361, 363 (6th Cir. 2005).

        We grant counsel’s motion to withdraw and dismiss the appeal.
