                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4873


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RANDOLPH EDISON, a/k/a Uncle Rudy,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:09-cr-00183-WDQ-7)


Submitted:   April 23, 2012                 Decided:   April 26, 2012


Before KING, GREGORY, and SHEDD, Circuit Judges.


Dismissed in part and affirmed in part by unpublished per curiam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


Arthur S. Cheslock, Baltimore, Maryland, for Appellant. James
Thomas Wallner, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Randolph Edison pled guilty to one count of possessing

a stolen firearm, in violation of 18 U.S.C. § 922(j) (2006).                         In

his   plea   agreement,       Edison    waived         the    right    to   appeal   his

conviction and sentence, reserving only the right to appeal a

sentence greater than 96 months.                 Pursuant to his Fed. R. Crim.

P.    11(c)(1)(C)      agreement       with      the     Government,        Edison   was

sentenced     to   a   term    of     96    months’          imprisonment.       Edison

appealed.

             Edison’s counsel has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), certifying that there

are no non-frivolous issues for appeal, but questioning whether

there was an adequate factual basis for Edison’s plea, whether

Edison’s counsel inappropriately coerced his plea, and whether

the district court abused its discretion in denying Edison’s

motion to withdraw his plea.               In his pro se supplemental brief,

Edison questions the legality of his arrest.                      The Government has

moved to dismiss Edison’s appeal to the extent that the issues

he raises fall within the scope of his plea agreement’s waiver

of appellate rights.          For the following reasons, we grant the

Government’s motion for partial dismissal, dismiss in part, and

affirm in part.

             Pursuant to a plea agreement, a defendant may waive

his   appellate     rights    under    18       U.S.C.   § 3742       (2006).    United

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States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                             A valid

waiver will preclude appeal of a given issue if the issue is

within the scope of the waiver.                     United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).                    The validity of an appellate

waiver is a question of law that we review de novo.                        Id.

              “The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the

right to appeal.”           Id. at 169.           This determination, often made

based on the sufficiency of the plea colloquy and whether the

district court questioned the defendant about the appeal waiver,

ultimately      turns      on    an   evaluation         of   the    totality      of    the

circumstances.          Id.      These circumstances include all of “the

particular      facts      and    circumstances          surrounding       [the]        case,

including      the     background,        experience,         and     conduct     of     the

accused.”      Id. (internal quotation marks omitted).

              Here, the district court substantially complied with

Rule   11     when   accepting        Edison’s      plea,     ensuring     that     Edison

understood the rights he was relinquishing by pleading guilty

and the sentence he faced, that Edison committed the offense to

which he was pleading, and that Edison was aware of the limits

his    plea    would    place      on   his       appellate      rights.        Given     no

indication      to   the      contrary,    we     find    that      Edison’s    appellate

waiver   is    valid    and      enforceable.        Accordingly,        we    grant     the

Government’s motion for partial dismissal, dismissing Edison’s

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appeal to the entent it raises issues within the scope of the

waiver, including Edison’s pro se challenge to the legality of

his arrest.

              However, even a valid waiver of appellate rights will

not    foreclose     a     colorable      constitutional      challenge       to   the

voluntariness of a guilty plea.                   See, e.g., United States v.

Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994).                        Further, an

appeal waiver does not preclude an appeal from the denial of a

motion to withdraw a guilty plea based on ineffective assistance

of counsel.        See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).           Because Edison’s motion to withdraw his plea

was    premised    on,     among    other       things,   claims   of    ineffective

assistance of counsel, we find that his appellate waiver does

not bar his appeal of its denial.

              We   review    for    an    abuse     of    discretion     a   district

court’s denial of a motion to withdraw a guilty plea.                          United

States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007).                         In order

to withdraw a guilty plea before sentencing, a defendant must

show   that    a   “fair    and    just   reason”     supports     his   request   to

withdraw.      Fed. R. Crim. P. 11(d)(2)(B); United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991).                 We have defined a “fair and

just reason” as one that essentially challenges the fairness of

the Rule 11 proceeding.            United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992) (en banc).                  Where, as here, the district

                                            4
court substantially complies with the requirements of Rule 11 in

accepting a defendant’s guilty plea, the defendant must overcome

a strong presumption that his plea is final and binding.                                  See

id.    We     have   reviewed      the    record     in     this    case       and,     after

carefully considering the factors described in Moore, conclude

that the district court did not abuse its discretion in denying

Edison’s motion to withdraw his plea.                       Thus, we affirm as to

this claim.

            Further,      we    decline      to    consider        at    this     juncture

Edison’s allegations that he was denied the effective assistance

of counsel.        Unless an attorney’s ineffectiveness conclusively

appears on the face of the record, ineffective assistance claims

are not cognizable on direct appeal.                      United States v. Benton,

523 F.3d 424, 435 (4th Cir. 2008).                  Instead, such claims should

be raised in a motion brought pursuant to 28 U.S.C.A. § 2255

(West Supp. 2011), in order to promote sufficient development of

the record.        United States v. Baptiste, 596 F.3d 214, 216 n.1

(4th   Cir.      2010).        Here,   the       record    fails        to    conclusively

establish        counsel’s       deficient         performance           or      resulting

prejudice.

            In     accordance      with      Anders,       we    have        reviewed     the

record, mindful of the scope of the appellate waiver, and have

found no meritorious issues for appeal.                         We therefore dismiss

the appeal in part and affirm in part.                    This court requires that

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counsel inform Edison, in writing, of his right to petition the

Supreme    Court   of   the    United    States   for    further      review.      If

Edison requests that a petition be filed, but counsel believes

that such a petition would be frivolous, counsel may move in

this court for leave to withdraw from representation.                    Counsel’s

motion must state that a copy thereof was served on Edison.                       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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