                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4551


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CARLOS FERNANDO VASQUEZ-MARTINEZ, a/k/a Killer Bill, a/k/a
Killer Beel, a/k/a Killer,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, District Judge.
(8:05-cr-00393-DKC-26)


Submitted:    April 3, 2009                 Decided:   April 15, 2009


Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. James M. Trusty, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Carlos     Fernando     Vasquez-Martinez               (“Martinez”)         pled

guilty pursuant to a plea agreement to conspiracy to participate

in    a   racketeering       enterprise,       in        violation        of     18     U.S.C.

§ 1962(d)     (2006).        His    counsel     filed         a    brief       pursuant    to

Anders v. California, 386 U.S. 738 (1967), asserting there are

no meritorious issues for appeal but claiming Martinez received

ineffective assistance of counsel prior to pleading guilty and

prior to sentencing.           Martinez was informed of the opportunity

to file a pro se supplemental brief but chose not to do so.                               The

Government    moves     to     dismiss   the    appeal            based    on    Martinez’s

appeal waiver in the plea agreement.                       We affirm in part and

dismiss the appeal in part.

             This court reviews the validity of an appeal waiver de

novo, United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000),

and will uphold a waiver of appellate rights if the waiver is

valid and the issue being appealed is covered by the waiver.

United States v. Attar, 38 F.3d 727, 731-32 (4th Cir. 1994).                                A

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

knowing and voluntary.             United States v. Marin, 961 F.2d 493,

496   (4th   Cir.     1992).       Generally,       if    a   district          court    fully

questions a defendant regarding his waiver of appellate rights

during the Fed. R. Crim. P. 11 colloquy, the waiver is valid.

United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).

                                         2
                  In a valid plea agreement, a defendant may waive the

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

States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                         An appeal

waiver, however, does not preclude appeals:                    (1) of a sentence

on the ground that it exceeds the statutory maximum or is based

on     a    constitutionally         impermissible       factor     such    as   race;

(2) from the denial of a motion to withdraw a guilty plea based

on   ineffective           assistance    of   counsel;    or   (3)    concerning     a

violation of the Sixth Amendment right to counsel in proceedings

following the guilty plea.                See United States v. Johnson, 410

F.3d       137,    151   (4th   Cir.    2005).     In    addition,    a    waiver    of

appellate         rights    cannot     foreclose   a    colorable    constitutional

challenge to the voluntariness of the guilty plea.                         See, e.g.,

Attar, 38 F.3d at 732-33 & n.2.

                  We find Martinez knowingly and voluntarily waived his

right to appeal his sentence so long as it was based upon an

offense level under the Sentencing Guidelines of thirty-eight or

lower.       Because his sentence was based on an offense level of

thirty-six, we will grant the Government’s motion, enforce the

appeal waiver and dismiss the appeal from Martinez’s sentence.

                  We find Martinez’s ineffective assistance of counsel

claims are not cognizable on direct appeal because the basis for

his claims does not conclusively appear in the record.                              See

United States v. James, 337 F.3d 387, 391 (4th Cir. 2003).

                                              3
            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal

from the conviction.      We therefore affirm Martinez’s conviction.

This court requires counsel inform his client, in writing, of

the right to petition the Supreme Court of the United States for

further review.    If he requests a petition be filed, but counsel

believes 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

Martinez.    Accordingly, we affirm in part and dismiss in part.

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




                                    4
