                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4317


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BILLY RAY FELDER,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:08-cr-00295-BO-2)


Submitted:    January 19, 2010              Decided:   January 26, 2010


Before NIEMEYER, KING, and DAVIS, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Richard A. McCoppin, MCCOPPIN & ASSOCIATES ATTORNEYS AT LAW,
P.A., Cary, North Carolina, for Appellant. Anne Margaret Hayes,
Jane J. Jackson, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Billy    Ray    Felder      appeals         his   188-month         sentence    of

imprisonment,          following      his     guilty         plea      to     one     count    of

possession with intent to distribute more than five grams of

cocaine    base,       in   violation       of       21   U.S.C.     § 841(a)(1)        (2006).

Felder’s attorney filed his appellate brief pursuant to Anders

v. California, 386 U.S. 738 (1967), stating that in his opinion,

there    are    no     meritorious      issues        for    appeal,        but    asking     this

court     to     consider      the     reasonableness             of     Felder’s       within-

guideline-range sentence.                  The Government moves to dismiss the

appeal on the basis of the waiver of appellate rights contained

in Felder’s plea agreement.                  We dismiss the appeal in part and

affirm in part.

               We first conclude that Felder has waived his right to

appeal his sentence.            A defendant may waive the right to appeal

if that waiver is knowing and intelligent.                                  United States v.

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).                                    To determine

whether a waiver is knowing and intelligent, this court examines

the     background,         experience,       and         conduct      of    the    defendant.

United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.

1995).         Generally,      if    the    district         court      fully      questions     a

defendant regarding the waiver of his right to appeal during the

plea    colloquy       performed      in     accordance          with       Federal    Rule    of

Criminal Procedure 11, the waiver is both valid and enforceable.

                                                 2
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005);

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

The question of whether a defendant validly waived the right to

appeal is a question of law that we review de novo.                          United

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).

                  Our review of the record leads us to conclude that

Felder knowingly and voluntarily waived the right to appeal any

sentence that was not above the advisory Sentencing Guidelines

range       and    any   issues     relating   to    the   establishment    of     the

Guidelines range.             The sentencing issue that Felder raises on

appeal falls within the scope of this waiver.                        We therefore

grant the Government’s motion to dismiss in part and dismiss

this portion of the appeal.

                  Although the appeal waiver precludes our review of the

sentence,         it   does   not   preclude   our   review    of   any   errors    in

Felder’s conviction that may be revealed pursuant to the review

required by Anders.            Therefore, we deny the motion to dismiss in

part.        We have examined the entire record in accordance with

Anders, including the integrity of the Rule 11 hearing, and have

found no meritorious issues for appeal.                    Accordingly, we affirm

Felder’s conviction. ∗


        ∗
       In his pro se appellate brief, Felder asserts that trial
counsel rendered constitutionally ineffective assistance for
failing to ask the district court to impose a variant sentence.
(Continued)
                                           3
            This   court       requires    that    counsel     inform     Felder,   in

writing,   of   the     right    to   petition     the   Supreme     Court    of    the

United States for further review.                  If Felder 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 Felder.

            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




Because the record does not conclusively establish that counsel
did not provide ineffective assistance, this claim is not
cognizable on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir.), cert. denied, 129 S. Ct. 490 (2008).



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