                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5080


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KSENIA STEKOLSTSIKOVA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:09-cr-00003-MSD-TEM-18)


Submitted:   July 14, 2010                       Decided:   July 21, 2010


Before MOTZ and    DAVIS,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam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


Paul G. Watson, IV, PAUL G. WATSON, IV, P.C., Eastville,
Virginia, for Appellant. Stephen Westley Haynie, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Ksenia Stekolstsikova appeals from her conviction and

twenty-month sentence entered pursuant to her guilty plea to

conspiracy to defraud the United States.                      Counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

concluding that there are no meritorious grounds for appeal but

questioning whether the sentence was unreasonably long.                          In her

pro   se    supplemental       brief,    Stekolstsikova         asserts      that    the

presentence       report    (“PSR”)     contained      errors,      that   the     court

improperly        considered     her     co-conspirators’           sentences       when

choosing the appropriate sentence, and that her attorney was

ineffective during the sentencing hearing.                    The Government filed

a motion to dismiss the appeal on the basis of the appellate

waiver contained in Stekolstsikova’s plea agreement.

             A    defendant    may    waive     the   right    to   appeal    if    that

waiver is knowing and intelligent.                United States v. Poindexter,

492 F.3d 263, 270 (4th Cir. 2007).                    On appeal, Stekolstsikova

does not challenge the validity of her appellate waiver.                            She

argues     only    that    certain     claims    are    not    foreclosed      by    the

waiver.      Our    independent       review     of    the    record   supports      the

conclusion that Stekolstsikova voluntarily and knowingly waived

her right to appeal as part of the decision to plead guilty

rather than go to trial.             Thus, we conclude that the waiver is

valid and enforceable.

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              However,     as    noted    by    Stekolstsikova,      even       a   valid

waiver does not waive all appellate claims.                        Specifically, a

valid appeal waiver does not preclude a challenge to a sentence

on the ground that it exceeds the statutory maximum or is based

on a constitutionally impermissible factor such as race, arises

from the denial of a motion to withdraw a guilty plea based on

ineffective       assistance       of     counsel,     or     relates      to       claims

concerning a violation of the Sixth Amendment right to counsel

in   proceedings      following     the    guilty     plea.       United    States     v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).                         The only claim

raised by Stekolstsikova that falls outside the scope of her

appellate waiver is her assertion that counsel was ineffective

during   her    sentencing       hearing.        In   addition,     we   are    charged

under    Anders    with    reviewing       the    record    for    unwaived         error.

Thus, we grant the Government’s motion to dismiss in part and

dismiss the claim raised by counsel, as well as the remaining

claims in Stekolstsikova’s pro se brief.                    We deny the motion to

dismiss with regard to Stekolstsikova’s ineffective assistance

claim,   as    well   as   any    unwaived       claims    discovered      during      our

Anders review.

              In her claim of ineffective assistance of counsel at

the sentencing hearing, Stekolstsikova asserts that her counsel

withdrew objections to the PSR without her consent.                         She lists

certain alleged factual errors in the PSR, but she fails to show

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how pursuing these objections would have altered her Guidelines

range     or    her    actual      sentence.           In     any     event,    claims   of

ineffective assistance of counsel are generally not cognizable

on direct appeal.           United States v. King, 119 F.3d 290, 295 (4th

Cir. 1997).          Rather, to allow for adequate development of the

record, a defendant must bring her claim in a 28 U.S.C.A. § 2255

(West Supp. 2010) motion.                See id.      An exception exists when the

record conclusively establishes ineffective assistance.                              United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

               Our    review       of    the       record     fails    to      conclusively

establish ineffective assistance.                     Thus, Stekolstsikova’s claim

is not cognizable on direct appeal.                    Moreover, our review of the

record did not disclose any unwaived, meritorious claims for

review.        Accordingly, we affirm Stekolstsikova’s sentence.                         We

deny Stekolstsikova’s motion to substitute counsel.

               This court requires that counsel inform his client, in

writing,       of    her   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.                            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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