                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4485


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FERNANDO MIGUEL NUNEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
District Judge. (5:08-cr-00262-D-1)


Submitted:   August 31, 2010             Decided:   September 20, 2010


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part, affirmed in part by unpublished per curiam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


Fernando Miguel Nunez, Appellant Pro Se.  Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Fernando        Miguel       Nunez     appeals     his       conviction       and

within-guidelines          365-month      sentence        imposed    after       he    waived

indictment     and       pled     guilty,        pursuant     to     a     written       plea

agreement, to a criminal information charging possession with

intent to distribute more than 100 kilograms of marijuana, in

violation    of     21    U.S.C.    § 841(a)(1)         (2006).          After    obtaining

leave to proceed on appeal pro se, Nunez filed a brief, claiming

his sentence is unreasonable.                The Government filed a motion to

dismiss     based    on     an     appeal     waiver       provision       in    the     plea

agreement.        Nunez filed a response to the motion to dismiss,

presenting     for       the     first      time    a     claim     that        ineffective

assistance     of        counsel     prevented          him   from        knowingly       and

intelligently waiving his right to appeal and places his appeal

outside of the scope of the waiver.

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

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

Wiggins,    905     F.2d    51,    53    (4th      Cir.    1990).         We    review    the

validity of an appellate waiver de novo, United States v. Brown,

232 F.3d 399, 402-03 (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. Blick, 408

F.3d 162, 168 (4th Cir. 2005).



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            The issues raised by Nunez in his pro se brief are

encompassed by the scope of the waiver provision in which Nunez

agreed to

    waive knowingly and expressly the right to appeal
    whatever sentence is imposed on any ground, . . .
    reserving only the right to appeal from a sentence in
    excess of the advisory Guideline range that is
    established at sentencing . . . , excepting the
    Defendant’s right to appeal based upon grounds of
    ineffective assistance of counsel and prosecutorial
    misconduct not known to the Defendant at the time of
    the Defendant’s guilty plea.

Nunez’s claims of error in sentencing are foreclosed by the

express terms of the waiver, and we dismiss the appeal as to

those claims.

            We     conclude     that      Nunez’s   claim     of    ineffective

assistance of counsel is not cognizable on direct appeal as

ineffective      assistance     does     not   conclusively   appear      on   the

record.     United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999).      We therefore affirm Nunez’s conviction and dismiss

the appeal to extent Nunez seeks to challenge his sentence.                     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.



                                                            DISMISSED IN PART;
                                                              AFFIRMED IN PART




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