                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-5074


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ROBERT DEON HUNTER, SR., a/k/a Bob Hunter,

                  Defendant - Appellant.



                               No. 07-5143


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ROBERT DEON HUNTER, JR., a/k/a Robert Dean Hunter, Jr.,

                  Defendant – Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Asheville.    Lacy H. Thornburg,
District Judge. (1:06-cr-00251-LHT-4; 1:06-cr-00251-LHT-3)


Submitted:    March 11, 2009                 Decided:   March 27, 2009


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
No. 07-5074 affirmed; No. 07-5143 dismissed by unpublished per
curiam opinion.


Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North
Carolina; John C. Hunter, JOHN C. HUNTER LAW FIRM, LLC,
Asheville, North Carolina, for Appellants.      Gretchen C. F.
Shappert, 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Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In these consolidated appeals, Robert Deon Hunter, Sr.

(“Hunter, Sr.”) and his son, Robert Deon Hunter, Jr. (“Hunter,

Jr.”), appeal their convictions and sentences stemming from a

cocaine base distribution conspiracy.                 Hunter, Sr. was sentenced

to 262 months in prison, and Hunter, Jr. was sentenced to 120

months in prison, after they each pled guilty pursuant to plea

agreements to one count of conspiracy to possess with intent to

distribute cocaine base, in violation of 21 U.S.C. §§ 841, 846

(2006).

            Counsel for the Hunters filed a consolidated brief in

which   Hunter,     Jr.    asserts     that   the     district    court    erred    in

denying him a two-level reduction in his offense level because

of his allegedly minor role in the conspiracy.                     The Government

asserts    that    his     appeal    should    be     dismissed    based    on     the

appellate waiver contained in his plea agreement.                       Hunter, Sr.

asserts that his sentence should be vacated because his attorney

was ineffective for failing to move for a downward departure

sentence     based        on   the     Guidelines’       crack/powder        cocaine

disparity.       The Government claims that Hunter, Sr.’s ineffective

assistance of counsel claim is not cognizable on direct appeal.

We dismiss in part and affirm in part.

            We    find     that   Hunter,     Jr.’s    appeal     challenging      the

district     court’s      Guidelines    range       calculation    is     explicitly

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barred by his appellate waiver because the record establishes

that Hunter, Jr. knowingly and intelligently waived his right to

appeal his sentence; the language of the appellate waiver and

plea     agreement         is        clear   and       unmistakable      and     Hunter,    Jr.

acknowledged         his    familiarity            with    and    understanding        of   the

waiver at his Fed. R. Crim. P. 11 hearing.                          Accordingly, we must

enforce the appellate waiver’s terms and dismiss Hunter, Jr.’s

appeal.     See United States v. Blick, 408 F.3d 162, 168-69 (4th

Cir. 2005).

             We also find that Hunter, Sr.’s ineffective assistance

of   counsel     claim          is    not    cognizable      on    appeal.        Ineffective

assistance of counsel claims are not generally cognizable on

direct     appeal          unless        ineffective        assistance         “conclusively

appears”    on       the    record.           See      United     States    v.    Baldovinos,

434 F.3d 233, 239 (4th Cir. 2006).                        To establish an ineffective

assistance      of    counsel          claim,      a   defendant    must     show    that   his

counsel erred and then prove that but for counsel’s error, the

outcome    of    his       proceedings          would     have    been     different.       See

Strickland v. Washington, 466 U.S. 668, 694 (1984).                                 To satisfy

the second prong of Strickland, Hunter, Sr. must demonstrate

that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.”            Id. at 694.                “A reasonable probability is a



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probability sufficient to undermine confidence in the outcome.”

Id.

                 Hunter, Sr. claims that his counsel was ineffective

for failing to seek a downward departure sentence based on the

Guidelines’ crack/powder cocaine disparity.                          Because the law of

this circuit at the time of Hunter, Sr.’s sentencing clearly

prohibited a sentencing court from departing downward based on

the crack/powder cocaine disparity, see United States v. Eura,

440 F.3d 625, 634 (4th Cir. 2006) (holding that a district court

must not “rely on a factor that would result in a sentencing

disparity that totally is at odds with the will of Congress,”

such        as   reliance     on    “recommendations          to     narrow      the     100:1

[crack/powder           cocaine]     ratio”),         abrogated      by,    Kimbrough       v.

United States, 128 S. Ct. 558, 574 (2007) (“[I]t would not be an

abuse       of   discretion        for   a    district      court    to     conclude      when

sentencing         a     particular          defendant      that      the     crack/powder

disparity yields a sentence ‘greater than necessary’ to achieve

§   3553(a)’s          purposes.”), *    it     is    unlikely--and         certainly      not

“reasonabl[y]          probab[le]”--that            the   district    court      would    have

granted a departure request.                  Because Hunter, Sr. has not shown

a   reasonable          probability      that       his   sentence     would     have     been


        *
        Hunter, Sr. was sentenced on                         October       31,   2007,    and
Kimbrough issued on December 10, 2007.



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different   had    his     attorney    moved   for   a    downward      departure

sentence,   we    find    that   his   ineffective       assistance     does   not

conclusively appear on the record.             See Strickland, 466 U.S. at

694.

            For the foregoing reasons, we dismiss Hunter, Jr.’s

appeal (No. 07-5143) and affirm Hunter, Sr.’s conviction and

sentence (No. 07-5074).          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.

                                                         No. 07-5074 AFFIRMED
                                                        No. 07-5143 DISMISSED




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