                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4516


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ARMANDO JIMENEZ TAGLE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00295-MOC-DCK-1)


Submitted:   January 29, 2015             Decided:   February 5, 2015


Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Murray Kamionski, LAW OFFICE OF MURRAY KAMIONSKI, Manhattan
Beach, California, for Appellant. Anne M. Tompkins, United
States Attorney, William M. Miller, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Armando      Jimenez     Tagle        pleaded       guilty         pursuant     to    a

plea       agreement      to    conspiracy          to        possess          with    intent      to

distribute fifty grams or more of methamphetamine in violation

of    21    U.S.C.     §§ 841(b)(1)(A),            846    (2012).              After    departing

downward, the court sentenced Tagle to 138 months’ imprisonment,

at the bottom of the advisory Guidelines range.                                  Tagle appeals,

alleging ineffective assistance of counsel and challenging his

sentence.

              Tagle       asserts      that        counsel           was        ineffective        at

sentencing because she did not object to his 138-month sentence

on the ground that Tagle should receive credit for the time he

spent in state custody on related charges prior to his transfer

to     federal       court.          Unless        an     attorney’s            ineffectiveness

conclusively         appears    on    the     face       of    the    record,         ineffective

assistance claims are not generally addressed on direct appeal.

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

Instead,      such     claims    should       be        raised    in       a    motion      brought

pursuant      to     28   U.S.C.      § 2255        (2012),          in    order       to    permit

sufficient         development       of     the     record.               United       States      v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

              Our review of the record discloses that counsel raised

the issue of state custody credit at the sentencing hearing, and

the    judgment      reflects        the    district          court’s          view   that   Tagle

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should    be    granted    credit     for       time   served    on   related     state

charges.       Accordingly, because there is no demonstrated evidence

of ineffective assistance of counsel on the face of the record,

we reject Tagle’s argument and conclude that this claim should

be raised, if at all, in a § 2255 motion.

               Next,   Tagle    challenges       the    length   of    his    sentence,

arguing that he was not given credit for time he spent in state

custody on related charges.             The government asserts that Tagle

knowingly      and     intelligently    waived         his   right    to   appeal   his

sentence in his plea agreement, and that his challenge to the

sentence falls within the scope of the agreement.

               We review the validity of an appellate waiver de novo.

United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.

denied, 134 S. Ct. 126 (2013).               “A defendant may waive the right

to appeal his conviction and sentence so long as the waiver is

knowing and voluntary.”           Id. (internal quotation marks omitted).

“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. Thornsbury, 670 F.3d 532, 537

(4th Cir. 2012) (internal quotation marks omitted).                          Generally,

if the district court fully questions the defendant regarding

the waiver of his right to appeal during the plea colloquy, the

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waiver is both valid and enforceable.                    United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005).                     We “will enforce the waiver

if it is valid and the issue appealed is within the scope of the

waiver.”          Copeland, 707 F.3d at 528 (internal quotation marks

omitted).

                  Our   review     of   the   record    confirms   that,   under   the

totality of the circumstances, Tagle’s waiver of his appellate

rights was knowing and voluntary.                      Tagle waived his right to

appeal his conviction and sentence, with the exception of claims

of   ineffective             assistance       of    counsel    and    prosecutorial

misconduct.             We conclude that his challenge to the length and

calculation of his sentence falls within the scope of the valid

and enforceable waiver, and therefore dismiss this portion of

the appeal. ∗

                  We accordingly affirm the district court’s judgment in

part,       and    dismiss    in    part.      We   dispense   with   oral   argument

because the facts and legal contentions are adequately presented




        ∗
       In any event, we note that the district court did not have
the authority to determine the extent of credit toward the
service of a term of imprisonment for time spent in official
detention at sentencing. See 18 U.S.C. § 3585(b); United States
v. Wilson, 503 U.S. 329, 334 (1992). Only the Attorney General,
acting through the Bureau of Prisons, may compute sentencing
credit. Id. at 334-35.



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in the materials before this Court and argument would not aid

the decisional process.

                                             AFFIRMED IN PART;
                                             DISMISSED IN PART




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