                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 09-5028


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSEPH VAN SACH,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:09-cr-00003-IMK-JSK-1)


Submitted:   October 19, 2010             Decided:   January 28, 2011


Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


L. Richard Walker, Senior Litigator, FEDERAL PUBLIC DEFENDER
OFFICE, Clarksburg, West Virginia, for Appellant. David Earl
Godwin, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Joseph Van Sach pled guilty, pursuant to a written

plea    agreement,          to    aiding    and     abetting        an   assault     with    a

dangerous      weapon,       in    violation      of    18     U.S.C.    §§ 2,     113(a)(3)

(2006).        He was sentenced to sixty months’ imprisonment.                              On

appeal,       Van     Sach’s      counsel     has      filed    a    brief    pursuant      to

Anders v. California, 386 U.S. 738 (1967), in which he states

there    are     no     meritorious        issues      for     appeal,      but    questions

whether the district court erred in accepting Van Sach’s guilty

plea    and     in     concluding      that    Van      Sach’s       plea    was    knowing,

intelligent,          and    voluntary;       and      whether      counsel       below     was

ineffective.          Van Sach has filed a pro se supplemental brief.

The Government has moved to dismiss Van Sach’s appeal based upon

a waiver of appellate rights in his plea agreement.

               This court reviews the validity of a 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).                                   A

waiver is valid if the defendant’s agreement to the waiver was

knowing and voluntary.               United States v. Marin, 961 F.2d 493,

496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165,

167 (4th Cir. 1991).



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          To     determine      whether           a   waiver        is   knowing       and

intelligent,     this       court     examines         “the        totality    of      the

circumstances,    including         the    experience         and    conduct    of    the

accused, as well as the accused’s educational background and

familiarity    with    the   terms        of    the   plea    agreement.”        United

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

quotation marks omitted).           Generally, if a district court fully

questions a defendant regarding the waiver of appellate rights

during the Fed. R. Crim. P. 11 colloquy, the waiver is valid.

Wessells, 936 F.2d at 167-68.                  In this case, our review of the

record leads us to conclude that Van Sach’s waiver of his right

to appeal was knowing and voluntary.

          Because Van Sach did not move in the district court to

withdraw his guilty plea, any error in the Rule 11 hearing is

reviewed for plain error.            United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).            The record reveals that the district

court substantially complied with the requirements of Rule 11 in

accepting Van Sach’s guilty plea, and ensured that Van Sach’s

plea was knowing and voluntary and supported by a sufficient

factual basis.    See United States v. DeFusco, 949 F.2d 114, 116,

119-20 (4th Cir. 1991).

          While       Van    Sach     did        execute      an    otherwise        valid

appellate waiver at the time he entered his guilty plea, claims

of ineffective assistance of counsel are generally exempt from

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the ambit of such waivers.               See United States v. Johnson, 410

F.3d 137, 151 (4th Cir. 2005); United States v. Attar, 38 F.3d

727, 732 (4th Cir. 1994).                Accordingly, we deny the motion to

dismiss in part because we do not agree that Van Sach has waived

his right to make ineffective assistance of counsel claims on

appeal.

            That said, claims of ineffective assistance of counsel

are generally not cognizable on direct appeal.                       United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997).                     Rather, to allow for

adequate development of the record, a defendant must bring his

claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion.                       Id.    An

exception     exists     when      the      record    conclusively         establishes

ineffective assistance.            United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999).

            We    have     reviewed         the    record     and     conclude      that

ineffective assistance of counsel is not present on its face.

The   claim      is    therefore      not       cognizable    on     direct   appeal.

Accordingly,      we   grant    the    Government’s         motion    to   dismiss   in

part, affirm in part, and dismiss in part.                     In accordance with

Anders, we have reviewed the entire record in this case and Van

Sach’s pro se supplemental brief and have found no meritorious

issues for appeal that are not encompassed by the appeal waiver.

This court requires that counsel inform Van Sach, in writing, of

the right to petition the Supreme Court of the United States for

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further review.      If Van Sach 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 Van Sach.       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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