                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4168


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHIARETTA JOAN OWLE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00021-LHT-1)


Submitted:   August 12, 2010                 Decided:   September 8, 2010


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Rich Cassady, WILLIAMS & CASSADY, PLLC, Sylva, North Carolina,
for Appellant.   Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Chiaretta          Joan   Owle        pled   guilty      to   one   count     of

robbery within the territorial jurisdiction of the United States

and aiding and abetting the same, in violation of 18 U.S.C.

§§ 2111,     1153,    2    (2006).        The       charges    were      based   on    Owle’s

participation in the armed robbery and beating of Bryan Shell.

Owle timely appealed.             On appeal, Owle asserts that the district

court committed plain error in adopting ¶¶ 18 and 21 of the

presentence report (PSR), pertaining to the use of a firearm

during the offense and her role in the offense.                             Additionally,

Owle asserts a claim of ineffective assistance of counsel based

on trial counsel’s failure to object to the alleged errors in

the PSR or otherwise preserve the issues for appeal.                                  In its

response     brief,       the    Government         argues    that    in    light     of   the

appellate waiver provision of Owle’s plea agreement, this court

should dismiss the appeal.

             The purpose of the Rule 11 colloquy is to ensure that

the defendant enters a plea of guilty knowingly and voluntarily.

See United States v. Vonn, 535 U.S. 55, 58 (2002).                                  Prior to

accepting a guilty plea, a trial court must inform the defendant

of,   and    determine          that   she     understands,        the     nature     of   the

charges     to   which     the     plea   is    offered,      any     mandatory       minimum

penalty, the maximum possible penalty she faces, and the various

rights she is relinquishing by pleading guilty.                             Fed. R. Crim.

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P. 11(b).        The court also must determine whether there is a

factual basis for the plea.               Id.; United States v. DeFusco, 949

F.2d 114, 120 (4th Cir. 1991).

            Pursuant to a plea agreement, a defendant may waive

her rights to appeal under 18 U.S.C. § 3742 (2006) as long as

that   waiver      is    knowing    and    intelligent.          United      States    v.

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).                          To determine

whether a waiver is knowing and intelligent, we examine “the

totality    of     the    circumstances,       including        the   experience      and

conduct of the accused, as well as the accused’s educational

background       and     familiarity       with     the     terms     of     the    plea

agreement.”        United States v. General, 278 F.3d 389, 400 (4th

Cir.   2002)     (internal     quotation       marks      and   citation     omitted).

Generally, if the district court fully questioned a defendant

regarding the waiver of her right to appeal during the Rule 11

colloquy,    the    waiver    is    both    valid    and    enforceable.           United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

            Owle does not contend that there were any defects in

the Rule 11 colloquy or the district court’s acceptance of her

guilty   plea.          Moreover,   the    language       in    the   plea   agreement

setting forth the appellate waiver is clear and unambiguous.                           In

conducting the Rule 11 proceeding, the magistrate judge made

specific note of Owle’s appellate waiver.                       Trial counsel also

verified that he spoke with Owle concerning the waiver and that

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he was satisfied that she understood its terms.                         We accordingly

conclude the appellate waiver is valid and enforceable.                               United

States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).                               Thus, with

the    exception      of    Owle’s    claim     of     ineffective      assistance        of

counsel, which is specifically exempted from the scope of the

appellate      waiver,      we   dismiss   the    appeal      based     on    the     appeal

waiver in the plea agreement.

              Claims       of    ineffective      assistance       of        counsel     are

generally      not    cognizable      on   direct      appeal    unless       the     record

conclusively         establishes      ineffective        assistance          of     counsel.

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

allow    for    adequate         development      of    the     record,       ineffective

assistance of counsel claims ordinarily should be pursued in a

28 U.S.C. § 2255 (2006) motion.                 United States v. Hoyle, 33 F.3d

415, 418 (4th Cir. 1994).              Because the record before this court

does    not     conclusively         establish       ineffective        assistance        of

counsel, that claim is not yet ripe for consideration, and we

decline to consider that portion of the appeal.

              Accordingly, for the reasons stated, we affirm as to

Owle’s claim of ineffective assistance of counsel and dismiss

the remaining issues raised on appeal                      We dispense with oral

argument because the facts and legal contentions are adequately




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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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