                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4944


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTHONY ANTONIO SIMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00116-MR-1)


Argued:   October 29, 2010                 Decided:     February 1, 2011


Before TRAXLER,   Chief   Judge,   and   DUNCAN   and   KEENAN,   Circuit
Judges.


Affirmed in part and dismissed in part without prejudice by
unpublished opinion.   Judge Keenan wrote the opinion, in which
Chief Judge Traxler and Judge Duncan joined.


ARGUED: Faith Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte,
North Carolina, for Appellant. David Alan Brown, Sr., OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.   ON BRIEF: Anne M. Tompkins, United States Attorney,
Adam Morris, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:

       Anthony      Antonio     Sims        pleaded       guilty      to     unlawfully

possessing a firearm as a felon, in violation of 18 U.S.C. §

922(g)(1).       In conjunction with his guilty plea, Sims executed a

plea agreement that contained a waiver provision limiting his

right to appeal his conviction and sentence.                        As part of Sims’

sentence,     the   district    court       imposed      a   special       condition    of

supervised release requiring that he register as a sex offender

upon his release from prison.

       On appeal, Sims argues that his counsel was ineffective by

failing to object to the district court’s imposition of this sex

offender registration requirement, and that the district court

committed     plain    error    by     imposing         such    a    requirement       not

authorized by law.            Although Sims’ ineffective assistance of

counsel argument is not precluded by his appeal waiver, we hold

that   this    issue   is     not    ripe       for    review   on    direct    appeal.

Accordingly, we dismiss that portion of Sims’ appeal without

prejudice.       We also hold that Sims’ appeal waiver does not bar

him from challenging the district court’s imposition of the sex

offender registration requirement.                    However, we conclude on the

merits of this issue that the district court did not commit

plain error in imposing this condition of supervised release.




                                            2
                                            I.

       The    record   in    the    district      court    showed         that    Sims    was

involved in an altercation with police, during which he stated

that    he   had   a   firearm      on    his    person.        Sims    ultimately         was

arrested, and a search of his person revealed a .38 caliber

revolver in his rear pants pocket.                     A grand jury indicted Sims

for possession of a firearm by a felon, in violation of 18

U.S.C. § 922(g)(1).          Sims agreed to plead guilty to that charge,

and executed a written plea agreement in which he agreed to

waive his right to appeal his conviction or sentence, except for

claims   of    ineffective        assistance      of    counsel      or    prosecutorial

misconduct.

       The presentence investigation report prepared after Sims’

plea contained a recommendation that Sims should be designated

as an armed career criminal under 18 U.S.C. § 924(e), based on

four predicate offenses that purportedly qualified as crimes of

violence.       The fourth of these offenses was a conviction in

South    Carolina      in   2005    for     “Assault     and     Battery       of    a   High

Aggravated      Nature/Indecent          Liberties       with    Female”         (the     2005

South Carolina offense).            The victim of that crime was a minor.

       After Sims entered a plea of no contest to the 2005 South

Carolina      offense,      the    prosecution         agreed    not      to     pursue     an

additional     charge       of    assault   with    intent      to     commit       criminal



                                             3
sexual conduct with a minor, second degree. 1                    As part of his

sentence for the 2005 South Carolina offense, Sims was required

to register as a “child abuser” in South Carolina.

      Although Sims’ trial counsel filed written objections to

the presentence report on eight different grounds, none of those

grounds related to Sims’ prior offenses.                      Thus, Sims did not

dispute any fact or raise any legal issue with respect to his

conviction for the 2005 South Carolina offense, including that

the   conduct       underlying     the       conviction       involved      indecent

liberties with a female, or that he was ordered to register as a

“child abuser” in South Carolina as a result of the conviction.

      The   district    court    accepted       Sims’     guilty     plea   to   the

firearm charge and held a sentencing hearing, at which the court

sentenced Sims to a term of 180 months’ imprisonment, at the low

end   of    Sims’     guidelines     range       of     180     to   210     months’

imprisonment.       In addition to the 180-month prison term, the

district court also required Sims, as a special condition of


      1
       According to the presentence report, the indictment for
the 2005 South Carolina offense alleged that Sims “willfully and
unlawfully commit[ted] sexual battery upon . . .    a minor who
was 12 years old at the time of the incident, by the insertion
of all or part of his finger into the vagina of the minor
victim.” However, Sims argues that the record in this case does
not shed light on the factual basis for Sims’ plea in the South
Carolina case, including whether the charged conduct described
above was, in fact, the offense conduct for which Sims was
convicted.



                                         4
supervised    release,      to   register       as    a    sex   offender    in     each

jurisdiction where Sims resides or is employed following his

release from prison. 2           In ordering this special condition of

supervised    release,       the      district        court      stated     that    the

requirement      was     “[b]ased     upon    the      defendant’s     prior       South

Carolina sexual assault conviction.”                      Sims’ trial counsel did

not object to the district court’s imposition of this special

condition of supervised release.



                                        II.

     Sims’ arguments on appeal relate solely to the district

court’s imposition of the sex offender registration requirement

as a condition of his supervised release.                    Sims contends that he

was deprived of the effective assistance of counsel because his

trial counsel did not object to the district court’s decision to

include this requirement as part of his sentence.                           Sims also

asserts   that     the     district     court        committed    plain     error    in

imposing this special condition.

     In response, the government contends that Sims’ ineffective

assistance of counsel argument is not ripe for review on direct

     2
       Additionally, the district court required Sims upon his
release to register as a sex offender in North Carolina, the
jurisdiction in which he was convicted of the firearms offense,
even if he does not reside or work in North Carolina following
his release.



                                         5
appeal, because the record fails to disclose the reason trial

counsel did not object to the district court’s inclusion of the

sex offender registration requirement as part of Sims’ sentence. 3

The    government    further      notes   that     ineffective     assistance   of

counsel arguments ordinarily are adjudicated in a habeas corpus

motion brought pursuant to 28 U.S.C. § 2255.                  We agree with the

government’s argument.

       We will not reach the merits of an ineffective assistance

counsel      argument     on   direct     appeal    unless    it   “conclusively

appears” from the record that the defendant’s counsel failed to

provide effective representation.             United States v. Richardson,

195 F.3d 192, 198 (4th Cir. 1999) (citation omitted).                      After

reviewing the record in this case, we cannot say that the record

conclusively shows that Sims’ trial counsel was ineffective.                    Of

particular significance, we observe that Sims’ trial counsel has

not had the opportunity to explain whether she refrained from

making an objection for strategic reasons, or had another basis

for failing to make this objection in the district court.

       Because it does not “conclusively appear[]” from the record

that       Sims’   trial       counsel    failed     to      provide   effective

representation,      we    hold   that    Sims’    ineffective     assistance   of


       3
       The government concedes that Sims’ appeal waiver does not
prevent him from arguing that his trial counsel was ineffective.



                                          6
counsel argument is not ripe for review on direct appeal.                          See

id.     We   therefore     dismiss    without    prejudice       this    portion    of

Sims’ appeal.

       Sims next argues that the district court committed plain

error in imposing a sex offender registration requirement as a

term of his supervised release, because that special condition

is not authorized by law when a defendant is sentenced for a

firearm conviction under 18 U.S.C. § 922(g)(1).                     In response,

the government raises a procedural issue, contending that Sims

is barred from raising this argument on appeal because of the

appeal waiver contained in his plea agreement that exempts only

claims of ineffective assistance of counsel and prosecutorial

misconduct.    We disagree with the government on this issue.

       It is well established that a defendant, as part of a plea

agreement, may waive his right to appeal his sentence provided

that   the   waiver   is    made     knowingly   and   voluntarily.          United

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

ordinarily    interpret     a   waiver    provision    in    a    plea    agreement

according to the agreement’s plain language.                 United States v.

Holbrook, 368 F.3d 415, 420 (4th Cir. 2004), vacated on other

grounds, 545 U.S. 1125 (2005).               However, this court and other

courts of appeal on occasion have recognized exceptions to this

general rule, declining to enforce appeal waivers under certain

circumstances.     See, e.g., United States v. Marin, 961 F.2d 493,

                                         7
496 (4th Cir. 1992) (noting that a defendant cannot waive his

right to appeal a sentence that was imposed in excess of the

maximum   penalty    provided      by    statute      or     that     was    based    on    a

constitutionally impermissible factor); United States v. Bownes,

405   F.3d    634,      637   (7th      Cir.        2005)     (discussing        various

circumstances recognized by courts of appeal in which appeal

waivers will not be enforced); United States v. Johnson, 347

F.3d 412, 415 (2d Cir. 2003) (declining to enforce appeal waiver

because   defendant      argued    on    appeal       that    his     sentence       rested

impermissibly on his financial situation and inability to pay

restitution).

      In United States v. Broughton-Jones, 71 F.3d 1143, 1145

(4th Cir. 1995), we held that a defendant’s valid waiver of her

right to appeal her sentence did not bar her from contesting the

district court’s restitution order, which the defendant claimed

was not authorized by the Victim and Witness Protection Act.                               We

characterized the restitution order as “illegal,” in the same

sense that a sentence of imprisonment exceeding the statutory

maximum penalty is illegal.              Id. at 1147.               We held that the

defendant’s     argument       concerning            the      illegality        of     the

restitution     order    therefore       was        outside    the     scope     of    the

defendant’s appeal waiver as a matter of law.                    Id.

      Here,   Sims   contends      that       the    sex     offender       registration

requirement     imposed       by   the        district        court     is     similarly

                                          8
“illegal,” and thus is outside the scope of his appeal waiver.

Based on our holding in Broughton-Jones, we agree that Sims’

argument     challenging          the        imposition        of        the    registration

requirement is not subject to the appeal waiver provision in his

plea agreement.

       Addressing the merits of this issue, Sims concedes that his

argument is subject to review only for plain error, because he

did not object in the district court to the imposition of the

sex    offender        registration         requirement.            To    establish    plain

error, Sims must demonstrate that: (1) the district court erred;

(2)    the   error        was    plain;        (3)       the   error       affected     Sims’

substantial       rights;       and    (4)    the    error     seriously        affects     the

fairness,         integrity,          or     public       reputation           of    judicial

proceedings.        United States v. Olano, 507 U.S. 725, 731-32, 736

(1993).

       With these principles in mind, we reject Sims’ argument

that   the   district         court        lacked    authority      to     require    him   to

register     as    a    sex     offender       as    a    special        condition    of    his

supervised release.              Under 18 U.S.C. § 3583(d), a sentencing

court has the discretion to impose a condition of supervised

release so long as that condition is “reasonably related” to

certain of the factors specified in 18 U.S.C. § 3553.                                  These

factors include, among others, “the history and characteristics

of the defendant.”            18 U.S.C. § 3553(a)(1).

                                               9
      The district court did not commit plain error in imposing

the sex offender registration requirement because that condition

was “reasonably related” to Sims’ “history and characteristics.”

We note that the district court ordered this special condition

“[b]ased     upon      the       defendant’s         prior   South      Carolina     sexual

assault conviction.”              We conclude without difficulty that Sims’

conviction       for       the    2005     South      Carolina    offense      provided   a

sufficient nexus to the sex offender registration requirement

that the district court imposed in this case.                          See United States

v. Smart, 472 F.3d 556, 559-60 (8th Cir. 2006) (affirming sex

offender      registration               requirement         following         defendant’s

conviction       of    a    firearms       offense      based    on    defendant’s    past

conviction of a sex offense); see also United States v. Wesley,

81 F.3d 482, 484 (4th Cir. 1996) (affirming special condition

prohibiting alcohol consumption following defendant’s conviction

for   embezzlement          based     on    defendant’s         past    convictions    for

driving    under       the       influence      and    for   being      intoxicated    and

disruptive).

      We   are    not      persuaded       by   Sims’     argument     that    the   record

fails to establish that the 2005 South Carolina offense involved

conduct of a sexual nature or that the victim was a minor.

Under a heading in the presentence report labeled “Conviction,”

Sims’ offense is identified as “Assault and Battery of a High

and    Aggravated            Nature/Indecent            Liberties       with       Female.”

                                                10
(Emphasis added).      This description reveals that the 2005 South

Carolina offense for which Sims was convicted involved unlawful

conduct of a sexual nature with a female.

        It is also clear that the victim in that case was a minor

because the South Carolina court required Sims to register as a

“child abuser” as part of his sentence.                  Because Sims did not

object to these representations in the presentence report, the

district court was entitled to accept as fact that the 2005

South    Carolina   offense    involved     a   sexual    assault   on   a   minor

victim.     See Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing, the

court . . . may accept any undisputed portion of the presentence

report as a finding of fact.”).             Moreover, Sims does not argue

on    appeal    that    this      factual       information    is     erroneous.

Therefore, we hold that the district court did not commit plain

error in determining that the 2005 South Carolina offense was a

“sexual assault conviction.”          See United States v. Wells, 163

F.3d 889, 900 (4th Cir. 1998) (holding that plain error standard

applies to factual information in presentence report to which

defendant did not object).

        Our conclusion is not altered by Sims’ additional argument

that he should not be subject to this registration requirement

because, under North Carolina, South Carolina, and federal law,

his     convictions    do   not    trigger       a   mandatory      registration

requirement.    Even if Sims’ characterization of the various laws

                                      11
of    these        jurisdictions        is        correct,     the        district         court

nevertheless        had     discretion      under    18     U.S.C.    §    3553(a)         and §

3583(d) to order Sims to register as a sex offender upon his

release from prison.              Thus, the district court’s discretionary

authority under these provisions renders it irrelevant whether

any   state     or      federal      statute       would     have    required         Sims    to

register independent of the district court’s order.

      Finally, we reject Sims’ argument that the district court

did   not   explain         adequately      its     reason    for     imposing        the    sex

offender      registration         requirement.              During       the       sentencing

hearing,      the    district      court     prefaced       its     imposition        of     this

requirement        by   stating      that    it    was     “[b]ased”      on    Sims’      prior

South Carolina sexual assault conviction.                           The district court

also identified the docket number for the 2005 South Carolina

offense.       Given        the   obvious      connection         between       the    conduct

involved      in     that    conviction       and     the     requirement           that    Sims

register as a sex offender, we conclude under the plain error

standard      that        the     district        court      provided          an     adequate

explanation for imposing this special condition of supervised

release.

      For     these       reasons,    we     dismiss       without     prejudice           Sims’

argument that his trial counsel provided ineffective assistance,




                                             12
and we affirm the district court’s sentence requiring Sims to

register as a sex offender upon his release from prison.



                                    AFFIRMED IN PART AND DISMISSED
                                         IN PART WITHOUT PREJUDICE




                               13
