                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4917


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICKY SHERELLE JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:10-cr-00155-RGD-FBS-1)


Submitted:   May 4, 2012                   Decided:   May 10, 2012


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam
opinion.


Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant.   Cameron Rountree, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Ricky    Sherelle        Johnson       pled      guilty,      pursuant       to    a

written          plea     agreement,          to    possession          of     a     firearm       in

furtherance         of    a    drug     trafficking           crime,    in    violation      of    18

U.S.C.      § 924(c)(1)(A)            (2006).          The     district       court       sentenced

Johnson to 262 months’ imprisonment.                           On appeal, Johnson argues

that       his    trial       counsel    was       constitutionally           ineffective         for

advising him to enter into a plea agreement without explaining

that he could be subject to an enhanced sentence as a career

offender and failing to file an appeal as he requested.                                            In

addition,         Johnson      argues     that      the       district       court   erroneously

sentenced him as a career offender.

                 The Government seeks to enforce the appellate waiver

provision         of     the    plea     agreement         and    has     moved      to    dismiss

Johnson’s         appeal. ∗         In    response,           Johnson    asserts       that       the

appellate waiver is unenforceable because his counsel provided

ineffective assistance and maintained a conflict of interest in

advising         Johnson       to     enter    into       a    plea     agreement      with       the

Government.


       ∗
       The Government also notes that Johnson’s pro se notice of
appeal is untimely, as it was filed on September 6, 2011, more
than three months after judgment was entered on May 16, 2011.
However, the Government waives the untimeliness of Johnson’s
appeal, seeking dismissal solely based upon Johnson’s appellate
waiver.



                                                   2
            A defendant may, in a valid plea agreement, waive the

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

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                       An appellate waiver

must be “the result of a knowing and intelligent decision to

forgo the right to appeal.”                 United States v. Broughton-Jones,

71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and

citation omitted).            We review de novo whether a defendant has

effectively waived his right to appeal.                   United States v. Marin,

961 F.2d 493, 496 (4th Cir. 1992).

            To    determine       whether          a   waiver        is   knowing     and

intelligent,      this        court     examines        “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 a court

fully questions a defendant regarding the waiver of his 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).        However, this court will “refuse to enforce an

otherwise valid waiver if to do so would result in a miscarriage

of   justice.”          Id.    (internal         quotation     marks      and   citation

omitted).



                                             3
             The    language    of     the   waiver      provision         is     clear      and

unambiguous, setting forth a broad waiver of appellate rights;

Johnson agreed to waive the right to appeal “the conviction and

any   sentence      within     the   statutory         maximum”       on        “any    ground

whatsoever.”        The court questioned Johnson regarding the waiver

provision     numerous       times     during     the    Fed.        R.     Crim.       P.     11

colloquy.      Johnson, thirty-one-years-old with a GED, indicated

that he had reviewed the waiver provision and understood its

terms.     In addition, the court advised Johnson that he would not

be    able    to    withdraw     his     guilty        plea     if        his     attorney’s

predictions     regarding      his   Guidelines         range   proved           inaccurate,

emphasized     that     Johnson’s        Guidelines        range          could        not    be

determined     until     the    presentence        report       was        prepared,          and

cautioned that Johnson’s criminal history would be an important

factor   in    determining       his    Guidelines        range.            We    therefore

conclude     that   Johnson     knowingly        and    intelligently            waived       his

right to appeal his conviction and sentence.                          As the district

court imposed a sentence within the statutory maximum, Johnson’s

challenge to his sentence falls within the scope of the waiver

and may not be reviewed by this court.

             Johnson also asserts that his trial counsel provided

ineffective assistance by failing to explain that he could be

subject to an enhanced sentence as a career offender based upon

his criminal history and failing to file a direct appeal.                                    This

                                             4
court is not precluded from considering claims of ineffective

assistance of counsel by the waiver provision, and we deny the

motion    to    dismiss    as    to    these     claims.     However,       claims      of

ineffective      assistance       of   counsel     should    be    raised    in     a    28

U.S.C.A. § 2255 (West Supp. 2010) motion rather than on direct

appeal,    unless    the    appellate      record      conclusively    demonstrates

ineffective assistance.            United States v. Benton, 523 F.3d 424,

435 (4th Cir. 2008).            Because the record here does not establish

that counsel was constitutionally ineffective, these claims are

not subject to review on direct appeal.

               Accordingly,      we    grant     the    Government’s        motion       to

dismiss in part and deny it in part.                   We dismiss the appeal of

Johnson’s      sentence    and    otherwise       affirm    the    judgment    of       the

district    court.        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.



                                                                  AFFIRMED IN PART;
                                                                  DISMISSED IN PART




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