                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4737


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

TYRONE EUGENE YATES,

                  Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:06-cr-00020-JPB-JES-1)


Submitted:    February 24, 2009                  Decided:   May 4, 2009


Before KING and      AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam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


Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant.  Thomas Oliver Mucklow, Assistant
United   States  Attorney,  Martinsburg,  West   Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Tyrone Eugene Yates appeals from his conviction and

188-month       sentence    after      pleading       guilty          pursuant       to    a    plea

agreement to possession with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1) (2006).                            Yates’ counsel filed

an Anders brief, in which he states there are no meritorious

issues for appeal, acknowledges that the district court complied

with Fed. R. Crim. P. 11, and concedes that Yates’ plea was

“knowing,       intelligent    and       voluntary.”                Yates    filed    a    pro    se

supplemental          brief        challenging                 his      career            offender

classification.

                The Government has moved to dismiss the appeal based

on   the    appellate      waiver      contained          in    Yates’       plea    agreement.

Yates’      counsel     asserts          that       the        Government’s          motion      is

premature.        Yates also opposes the Government’s motion in a pro

se filing, essentially asserting that because he did not know he

could      be   sentenced     as   a     career      offender,          his    plea       was    not

knowing and voluntary.             Yates also suggests that his counsel was

ineffective for not arguing the invalidity of his sentence to

this court, and for not securing an exception to his appellate

waiver     that    would    have    allowed         him    to        challenge       his   career

offender        classification      on    appeal.              We    grant    the     motion      to

dismiss in part, deny it in part, and affirm in part.



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

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

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

Blick, 408 F.3d 162, 168 (4th Cir. 2005).                     Our review of the

record reveals that Yates knowingly and voluntarily waived his

right to appeal his sentence.

             We conclude, however, that Yates’ assertions that his

guilty plea was involuntary and that he was denied effective

assistance      of    counsel     constitute    exceptions    to    the    appellate

waiver because the issues either cannot be waived by appellate

waiver or present “colorable” constitutional challenges.                          See,

e.g., United States v. Johnson, 410 F.3d 137, 151 (4th Cir.

2005); United States v. Attar, 38 F.3d 727, 733 n.2 (4th Cir.

1994).    Moreover, Yates’ appellate waiver does not preclude an

appeal pertaining to his conviction.                  Accordingly, we deny the

Government’s motion to dismiss as to any claims not foreclosed

by the waiver.           While we possess jurisdiction to consider the

excepted claims, we nonetheless find that none warrant vacatur.

             As      previously    stated,     the   record   confirms     that    the

district court conducted a thorough Rule 11 hearing, ensuring

that   Yates’     plea    was   knowing   and    voluntary     in   all    respects.

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Yates’ belated claim that he did not understand the consequences

of his plea is simply belied by the record.                     In addition, Yates’

claim that he was denied effective assistance of counsel does

not “conclusively appear” on the record and, accordingly, is not

cognizable on direct appeal.             Yates may assert this claim in an

appropriate motion for postconviction relief.                      See United States

v.   Benton,    523    F.3d   424,     435   (4th     Cir.)     (citation    omitted),

cert. denied, 129 S. Ct. 490 (2008).

           In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

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

appeal regarding Yates’ sentence, and deny the motion as to all

remaining claims.         We nonetheless affirm the district court’s

judgment with regard to any claims not foreclosed by the waiver

provision.

           This       court     requires         counsel   to    inform     Yates,   in

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

United States for further review.                     If Yates 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 Yates.                      We dispense with

oral   argument       because    the    facts       and    legal    contentions      are



                                             4
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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