                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4290


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

WENDELL ROUSE, JR.,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:17-cr-00235-BR-1)


Submitted: April 22, 2019                                         Decided: April 30, 2019


Before DIAZ and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.


Dismissed by unpublished per curiam opinion.


Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr.,
United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Seth
Morgan Wood, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A federal grand jury indicted Wendell Rouse, Jr., for possession of ammunition by

a convicted felon (Count 1) and possession of a firearm by a convicted felon (Count 2),

both in violation of 18 U.S.C. § 922(g)(1) (2012). Rouse pled guilty, pursuant to a plea

agreement, to Count 1, and the district court sentenced him to 97 months’ imprisonment,

the bottom of his advisory Sentencing Guidelines range. On appeal, Rouse argues that

the appellate waiver in his plea agreement is invalid based on counsel’s ineffective

assistance and that he should therefore be able to raise various challenges to the

reasonableness of his sentence. The Government counters that Rouse’s sentencing claims

fall squarely within the unambiguous, valid appellate waiver.        We agree with the

Government and dismiss Rouse’s appeal.

       We review the validity of an appellate waiver de novo and “will enforce the

waiver if it is valid and the issue appealed is within the scope of the waiver.” United

States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016). A waiver is valid if it is “knowing

and voluntary.” Id. To determine whether a waiver is knowing and voluntary, “we

consider the totality of the circumstances, including the experience and conduct of the

defendant, his educational background, and his knowledge of the plea agreement and its

terms.” United States v. McCoy, 895 F.3d 358, 362 (4th Cir.) (internal quotation marks

omitted), cert. denied, 139 S. Ct. 494 (2018). Generally, “if a district court questions a

defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the

record indicates that the defendant understood the full significance of the waiver, the

waiver is valid.” Id. (internal quotation marks omitted).

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       However, “[e]ven if the court engages in a complete plea colloquy, a waiver of the

right to appeal may not be knowing and voluntary if tainted by the advice of

constitutionally ineffective trial counsel.” United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005). This is because a plea “cannot be knowing and voluntary when the plea

agreement itself is the result of advice outside the range of competence demanded of

attorneys in criminal cases.” Id. (internal quotation marks omitted). But this does not

change the general rule that, “[u]nless an attorney’s ineffectiveness conclusively appears

on the face of the record, such claims are not addressed on direct appeal.” United States

v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). To succeed on an ineffective assistance

of counsel claim, the movant must show that counsel’s performance was constitutionally

deficient and that the deficient performance was prejudicial. Strickland v. Washington,

466 U.S. 668, 687-88, 691-92 (1984).

       Rouse contends that counsel rendered ineffective assistance by failing to move to

dismiss one of the counts in the indictment as duplicative and that, had counsel been

successful in this motion, Rouse would have pled guilty without a plea agreement and his

challenges to his sentence would not have been barred by an appellate waiver. We

conclude that counsel’s ineffectiveness does not conclusively appear on the face of the

record and, therefore, Rouse may not avoid the application of the appellate waiver

through his ineffective assistance allegation. Because the sentencing claims Rouse seeks

to raise fall squarely within the scope of the unambiguous appellate waiver, we dismiss

his appeal.



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      We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                         DISMISSED




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