                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-8231


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT ISADORE RICHARDSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:05-cr-00040-JPB-JES-1)


Submitted:   March 24, 2011                 Decided:   April 8, 2011


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


Affirmed in part; dismissed in part by unpublished per curiam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


Jacob A. Manning, DINSMORE & SHOHL, LLP, Wheeling, West
Virginia, for Appellant. Betsy C. Jividen, Acting United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Robert Richardson pled guilty, pursuant to a written

plea agreement, to one count of distributing crack cocaine and

was sentenced to a 210-month term of imprisonment.                   On appeal,

Richardson’s attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that there are no

meritorious    grounds   for   appeal,       but     questioning    whether    the

district court committed plain error in accepting Richardson’s

guilty plea.     Richardson has filed a supplemental pro se brief

in which he raises the following claims:               (1) the district court

erred by amending the indictment without presentment to a grand

jury; (2) the district court abused its discretion by proceeding

with the second indictment without resubmitting it to a grand

jury; (3) counsel was ineffective for failing to file a motion

to suppress; (4) counsel was ineffective for failing to appeal

Richardson’s    designation    as   a       career    offender;    and   (5)   the

district court abused its discretion in refusing to apply a 1:1

ratio of crack to powder cocaine at sentencing.                    In its reply

brief, the United States seeks to dismiss the appeal based on

the appellate waiver provision in the plea agreement.

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

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

Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                       We review the

validity of an appellate waiver de novo, and we will uphold a

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waiver of appellate rights if the waiver is valid and the issue

being   appealed     is    covered       by      the    waiver.          United   States    v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005).                           An appellate waiver

is valid if the defendant’s agreement to the waiver was knowing

and intelligent.          Id. at 169.            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. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal

quotation marks and citation omitted).                       Generally, if a district

court   fully    questions        a    defendant            regarding      the    waiver    of

appellate rights during the Federal Rule of Criminal Procedure

11   colloquy,      and    the     record         indicates        that     the     defendant

understood    the    full       significance           of    the   waiver    and     was   not

denied effective assistance of counsel, the waiver is valid.

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

             A review of the Rule 11 hearing transcript confirms

that Richardson knowingly and intelligently waived his right to

appeal.   In his plea agreement, Richardson explicitly waived the

right to challenge his sentence on appeal, reserving only the

right to appeal based upon grounds of ineffective assistance of

counsel, prosecutorial misconduct, a sentence in excess of the

statutory maximum, or a sentence based on an unconstitutional

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factor.      Richardson confirmed at his Rule 11 hearing that he

read   and   understood        the    plea    agreement.             The    district      court

conducted the colloquy required under Rule 11, ensuring that

Richardson understood the charges and potential penalties and

that Richardson was competent to enter the plea.                                 We therefore

conclude that Richardson knowingly and intelligently pled guilty

and waived the right to appeal his sentence.                          Richardson’s claim

challenging the district court’s failure to apply a 1:1 ratio at

sentencing      falls       squarely      within        the    scope        of     the   waiver

provision; accordingly, we dismiss the appeal as to Richardson’s

sentence.

             The      waiver       provision        did        not,        however,       waive

Richardson’s       right     to   appeal     his    conviction.              The    first   two

issues    raised       in     Richardson’s         supplemental             pro     se    brief

challenge the validity of his conviction.                            However, Richardson

waived these claims by pleading guilty.                        A voluntary guilty plea

waives    the      right    to    challenge        antecedent,         nonjurisdictional

errors    not      logically      inconsistent          with    the    establishment         of

guilt.       See    Menna    v.    New    York,     423       U.S.    61,    62-63       (1975);

Tollett v. Henderson, 411 U.S. 258, 267 (1973).

             Richardson’s            third        and     fourth            claims       allege

ineffective        assistance        of      counsel.            However,          unless    an

attorney’s ineffectiveness is conclusively apparent on the face

of the record, ineffective assistance claims are not generally

                                              4
addressed on direct appeal.                 United States v. Benton, 523 F.3d

424, 435 (4th Cir. 2008); United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999) (providing standard and noting that

ineffective      assistance      of       counsel   claims       generally        should       be

raised    by    motion   under       28    U.S.C.A.   §    2255).           We    find       that

counsel’s ineffectiveness is not conclusively apparent on the

face of this record.

               In accordance with Anders, we have thoroughly examined

the entire record for any potentially meritorious issues not

covered by the waiver and have found none.                        Therefore we affirm

Richardson’s      conviction         and    grant   the    Government’s           motion       to

dismiss    in     part   as     to    Richardson’s        sentence.              This    court

requires       that   counsel    inform      Richardson,         in   writing,          of   his

right to petition the Supreme Court of the United States for

further    review.       If     Richardson       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 Richardson.                     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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