                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4517


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LUIS MIGUEL REYES TORRES,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, District Judge.
(1:10-cr-00301-BEL-2)


Submitted:   December 22, 2011             Decided:   January 31, 2012


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


Affirmed in part; dismissed in part by unpublished per curiam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


Bart Garry, LAW OFFICE OF BART GARRY, Baltimore, Maryland, for
Appellant.    Joshua L. Kaul, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Luis Miguel Reyes Torres appeals his convictions for

conspiracy to distribute morphine and methadone, which resulted

in   death,    and   distribution        of       morphine   and   methadone,     which

resulted in death, and his resulting 115-month sentence.                              On

appeal,    counsel       for    Torres    has       filed    a   brief    pursuant    to

Anders v.      California,        386     U.S.        738    (1967),       finding     no

meritorious issues for appeal, but questioning whether Torres’s

sentence exceeded the maximum under the applicable Guidelines

range   and    whether     Torres    received         ineffective        assistance   of

counsel.      The Government filed a motion to dismiss in part based

on Torres’s appellate waiver in the plea agreement.                            Although

informed of his right to do so, Torres has not filed a pro se

supplemental brief.            For the reasons discussed below, we grant

the Government’s motion, dismissing all claims barred by the

plea agreement, and affirm Torres’s convictions and sentence.

              In   his   plea    agreement,         Torres   agreed      to   waive   all

rights to challenge his convictions and sentence, excepting an

appeal from a sentence above the advisory Guidelines range.                            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).                    An appellate waiver must be

“the result of a knowing and intelligent decision to forgo the

right to appeal.”              United States v. Broughton-Jones, 71 F.3d

                                              2
1143,     1146    (4th    Cir.     1995)       (internal          quotation    marks    and

citation omitted).           We review de novo whether a defendant has

effectively waived his right to appeal.                      United States v. Marin,

961 F.2d 493, 496 (4th Cir. 1992).

             To    determine        whether          a     waiver     is     knowing    and

intelligent,      we     examine    “the       totality      of     the    circumstances.”

United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).

Generally, if a court fully questions a defendant regarding the

waiver of his right to appeal during the Rule 11 colloquy, the

waiver is both valid and enforceable.                       United States v. Johnson,

410   F.3d   137,      151   (4th       Cir.       2005).      We    find     that   Torres

knowingly and intelligently waived his right to appeal.                              Torres

stated that he was fully satisfied with his attorney and that he

understood the plea agreement and the rights he was waiving.

The district court specifically reviewed the appellate waiver

contained in the plea agreement and questioned Torres regarding

the waiver.        In addition, Torres admitted reviewing the plea

agreement itself.          Torres stated that he understood the waiver,

and he does not challenge the voluntariness of the waiver on

appeal.      Accordingly,          we    grant       the     Government’s      motion    to

dismiss all appellate claims covered by the waiver.

             However, a valid waiver of appeal does not completely

bar all appeals.          For instance, a Defendant may always appeal a

sentence imposed in excess of the statutory maximum, see Marin,

                                               3
961   F.2d    at    496;     a    sentence        based    on    a     constitutionally

impermissible      factor        such    as   race,      see    id.;    or    proceedings

conducted in violation of the Sixth Amendment right to counsel

after entry of the guilty plea, see United States v. Attar, 38

F.3d 727, 732-33 (4th Cir. 1994).                   Moreover, the waiver itself

specifically       exempted       an     appeal     of    a     sentence      above    the

Guidelines range.          We therefore examine counsel’s issues and the

record pursuant to Anders to determine whether there are any

nonwaived, meritorious issues for appeal.

             Counsel first raises the issue of whether Torres was

sentenced above the advisory Guidelines range.                            This claim is

frivolous and flatly belied by the record.

             Counsel       next        questions      whether        Torres      received

ineffective     assistance.             Regarding      his      sentencing,     such   an

ineffective assistance claim is unwaivable, as discussed above.

Accordingly,       we   address         on    the    merits      Torres’s      claim    of

ineffective assistance at sentencing.

             Claims of ineffective assistance of counsel are not

cognizable    on    direct       appeal,      unless      the    record      conclusively

establishes        ineffective          assistance.              United       States    v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                         Rather, to allow

for adequate development of the record, claims of ineffective

assistance generally should be brought in a 28 U.S.C.A. § 2255

(West 2006 & Supp. 2011) motion.                    United States v. Gastiaburo,

                                              4
16 F.3d 582, 590 (4th Cir. 1994).              Here, we find that the record

does not conclusively support a claim of ineffective assistance.

            In accordance with Anders, we have thoroughly examined

the   entire    record     for    any    unwaived,    potentially       meritorious

issues and have found none.              As such, we grant the Government’s

motion,     dismiss     all    claims     within     the   scope   of     the    plea

agreement waiver, and affirm Torres’s convictions and sentence.

This court requires that counsel inform Torres in writing of his

right to petition the Supreme Court of the United States for

further review.         If Torres 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 Torres.             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




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