                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4573



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


PAULITO SALAZAR-ACUNA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.  Lacy H. Thornburg,
District Judge. (CR-00-212)


Submitted:   July 28, 2006                 Decided:   August 16, 2006


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


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Paulito    Salazar-Acuna   pled   guilty   to    conspiracy   to

possess with intent to distribute and distribute cocaine and

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).          He

was sentenced to 168 months of imprisonment.         The Government has

moved to dismiss Salazar-Acuna’s appeal based upon a waiver of

appellate rights in his plea agreement.

          In his plea agreement, Salazar-Acuna waived his right to

contest either the conviction or sentence in any direct appeal or

post-conviction    proceeding,   except   for   claims    of   ineffective

assistance of counsel and prosecutorial misconduct.         Salazar-Acuna

first argues that his waiver of appellate rights was not knowing

and voluntary.    We review the validity of a 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 within the scope of the waiver.         United States v.

Attar, 38 F.3d 727, 731-33 (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); United

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

if the district court fully questions a defendant regarding the

waiver of his right to appeal during the colloquy under Federal

Rule of Criminal Procedure 11, the waiver is both valid and




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enforceable.      Wessells, 936 F.2d at 167-68.             We conclude that the

waiver was informed and voluntary.

              Because ineffective assistance of counsel claims fall

outside   the    scope    of    the   waiver   in    this   case,    we   deny    the

Government’s     motion    to    dismiss.       We   conclude,      however,     that

Salazar-Acuna waived the right to proceed on his claim that the

court erred in denying him a reduction under the safety valve

provision of the guidelines.          We therefore dismiss this portion of

the appeal.

              With respect to Salazar-Acuna’s claims of ineffective

assistance of counsel, such claims are generally not cognizable on

direct appeal.      See United States v. King, 119 F.3d 290, 295 (4th

Cir. 1997).       Rather, to allow for adequate development of the

record, a defendant must bring his claim in a motion under 28

U.S.C. § 2255 (2000).           See id.; United States v. Hoyle, 33 F.3d

415, 418 (4th Cir. 1994).             An exception exists when the record

conclusively establishes ineffective assistance.                United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                Our review of the

record leads us to conclude that any deficiencies in counsel’s

performance are not conclusively demonstrated.

              Accordingly, we dismiss the appeal in part and affirm in

part.   We further grant the Government’s motion to strike portions

of the joint appendix.          We dispense with oral argument because the

facts   and    legal   contentions      are    adequately     presented    in    the


                                       - 3 -
materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                                       DISMISSED IN PART;
                                                         AFFIRMED IN PART




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