                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4133


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ANTOINE GARFIELD RUSHIN,

                    Defendant - Appellant.



Appeal from the United States District Court for the Southern District of West Virginia,
at Huntington. Robert C. Chambers, District Judge. (3:16-cr-00140-1)


Submitted: December 21, 2017                                Decided: December 27, 2017


Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Dismissed by unpublished per curiam opinion.


John A. Carr, Charleston, West Virginia, for Appellant. Joseph Franklin Adams,
OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Antoine Garfield Rushin appeals his conviction and 120-month sentence entered

pursuant to his guilty plea to aiding and abetting the possession with intent to distribute

heroin. Rushin pled guilty pursuant to a written plea agreement. On appeal, counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there

are no meritorious issues for appeal but seeking review of the district court’s application

of the career offender enhancement. Rushin filed a pro se supplemental brief which also

attacks the career offender enhancement. In addition, Rushin asserts that he received

ineffective assistance of counsel when his attorney failed to raise certain objections to his

career offender enhancement. The Government filed a motion to dismiss the appeal as

barred by the appellate waiver contained in Rushin’s plea agreement. We grant the

motion and dismiss the appeal.

       We review de novo the validity of an appeal waiver. United States v. Copeland,

707 F.3d 522, 528 (4th Cir. 2013). We generally will enforce a waiver “if the record

establishes that the waiver is valid and that the issue being appealed is within the scope of

the waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (internal

quotation marks omitted).        A defendant’s waiver is valid if he “knowingly and

intelligently agreed to it.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).

       Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11

hearing, we conclude that Rushin knowingly and voluntarily waived his right to appeal

his conviction and sentence, with certain specified exceptions. Indeed, neither counsel



                                             2
nor Rushin disputes the validity of the plea or waiver. Thus, we conclude that the waiver

is valid and enforceable.

         The claims raised by counsel and Rushin on appeal clearly fall within the scope of

the broad appellate waiver, with the exception of Rushin’s ineffective assistance of

counsel claim which was expressly reserved in the plea agreement. However, because

we conclude that ineffective assistance of counsel does not conclusively appear on the

record, see United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006), Rushin’s

ineffective assistance claim is not cognizable on direct appeal. United States v. Benton,

523 F.3d 424, 435 (4th Cir. 2008). Instead, this claim should be pursued, if at all, 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).

         In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious issues for appeal outside the scope of the waiver.            We

therefore grant the Government’s motion to dismiss the appeal for the reasons stated

herein. This court requires that counsel inform Rushin, in writing, of the right to petition

the Supreme Court of the United States for further review. If Rushin 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 Rushin. We dispense with oral




                                             3
argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.



                                                                             DISMISSED




                                            4
