                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4429


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES RICHARD LUMSDEN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:14-cr-00152-RJC-3)


Submitted:   May 31, 2016                 Decided:   June 14, 2016


Before GREGORY, WYNN, and FLOYD, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam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


Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant.    Jill Westmoreland Rose, United States Attorney,
Anthony J. Enright, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       James Richard Lumsden appeals his convictions and 93-month

sentence following his guilty plea pursuant to a plea agreement

to   money      laundering,      a    violation        of   18     U.S.C.    § 1956(a)(1)

(2012),    and    possession         of   a     firearm     in    furtherance       of   drug

trafficking, a violation of 18 U.S.C. § 924(c) (2012).                              Lumsden

challenges      his    convictions        and       sentence,     alleging       ineffective

assistance      of    counsel     and     prosecutorial          misconduct.         Lumsden

also claims that the district court erred in denying his request

for new counsel, which rendered his waiver of appellate rights

involuntary, and denying his motion for a downward variance at

sentencing.       The Government argues that Lumsden’s appeal is — at

least in part — foreclosed by the waiver of appeal rights in his

plea agreement and that Lumsden’s remaining claims are without

merit.     For the following reasons, we affirm in part and dismiss

in part.

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

to   appeal     under    18    U.S.C.     § 3742       (2012).          United    States   v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                           Generally, “if the

record establishes that the waiver is valid and that the issue

being    appealed       is    within      the       scope   of    the    waiver,”     it   is

enforceable.          United States v. Thornsbury, 670 F.3d 532, 537

(4th     Cir.    2012)        (internal       quotation          marks    omitted).        A

defendant’s waiver is valid if he agreed to it “knowingly and

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intelligently.”           United States v. Manigan, 592 F.3d 621, 627

(4th Cir. 2010).            “Although the validity of an appeal waiver

often depends on the adequacy of the plea colloquy, the issue is

ultimately       evaluated        by   reference           to     the    totality         of    the

circumstances,” United States v. Davis, 689 F.3d 349, 355 (4th

Cir.   2012)     (internal        quotation        marks        omitted),      such      as     “the

experience and conduct of the accused, as well as the accused’s

educational background and familiarity with the terms of the

plea agreement.”        Thornsbury, 670 F.3d at 528.

       In his plea agreement, Lumsden agreed to waive his right to

appeal   but     reserved        his   right       to     raise    on    appeal     issues        of

ineffective assistance of counsel and prosecutorial misconduct.

Lumsden challenges the validity of the waiver, arguing that the

district court’s denial of his request to substitute counsel

rendered    the      waiver      involuntary.             Our     review      of   the     record

convinces       us   that     the      district          court     did     not      abuse       its

discretion in denying the request for new counsel, see United

States     v.    Horton,      693      F.3d        463,     466-67       (4th      Cir.        2012)

(providing standard of review and factors courts consider in

reviewing       motions     to    substitute            counsel),       and     that      Lumsden

knowingly and voluntarily waived his appellate rights.                                    Because

Lumsden’s challenge to his sentence falls squarely within the

scope of that waiver, we dismiss the appeal of the sentence.



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       Although Lumsden’s sentencing claim falls within the scope

of the waiver, Lumsden’s ineffective assistance of counsel and

prosecutorial misconduct claims fall outside the scope of the

waiver    and     are    subject     to       appellate       review.          Claims    of

ineffective assistance of counsel generally are not cognizable

on     direct     appeal,       unless        an     attorney’s        ineffectiveness

conclusively appears on the face of the record.                             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. § 2255 (2012), in order to permit sufficient development

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

(4th   Cir.     2010).        Because     the      record    does     not    conclusively

establish ineffective assistance of counsel, we conclude that

these claims should be raised, if at all, in a § 2255 motion,

and,   therefore,       we    decline    to       review    these    claims    on   direct

appeal.

       Finally,    Lumsden      argues        that    the    Government       engaged    in

prosecutorial      misconduct.           Because       Lumsden      failed     to   allege

prosecutorial misconduct before the district court, we review

for plain error.             United States v. Alerre, 430 F.3d 681, 689

(4th Cir. 2005) (applying plain error standard to prosecutorial

misconduct claim); see United States v. Obey, 790 F.3d 545, 547

(4th    Cir.    2015)    (setting       forth       plain    error    standard).         We

conclude that Lumsden cannot show error, let alone plain error.

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To establish prosecutorial misconduct, Lumsden “must show (1)

that the prosecutor’s remarks or conduct were improper and (2)

that    such    remarks      or        conduct        prejudicially         affected   his

substantial     rights      so    as    to   deprive        him   of   a    fair    trial.”

United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010)

(internal quotation marks omitted).                     Our review discloses that

Lumsden’s      claim   is    meritless,          as    he    fails     to    show    either

misconduct or prejudice.

       Accordingly,    we    affirm       Lumsden’s         convictions      and    dismiss

the appeal of the sentence.                  We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                  AFFIRMED IN PART AND
                                                                     DISMISSED IN PART




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