                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4598


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

PHILLIP EUGENE HILL,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00023-MR-DLH-6)


Submitted:   March 29, 2011                 Decided:   April 11, 2011


Before WILKINSON, MOTZ, and WYNN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant.      Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Phillip Eugene Hill pled guilty, pursuant to a written

plea agreement, to one count of conspiracy to possess with the

intent to distribute fifty grams or more of cocaine base, in

violation of 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2010)

and 21 U.S.C. § 846 (2006).                 The district court determined that

Hill was a career offender under the U.S. Sentencing Guidelines

Manual (“USSG”) (2008) and, after granting the Government’s USSG

§ 5K1.1,      p.s.,      motion,          sentenced      Hill        to     210    months’

imprisonment.         Hill appeals his sentence and argues on appeal

that the district court erred in sentencing him as a career

offender      and    trial     counsel      rendered     ineffective          assistance.

Relying    on    the     waiver      of    appellate     rights       in     Hill’s     plea

agreement, the Government urges the dismissal of this appeal.

We dismiss in part and affirm in part.

            A   defendant       may    waive     the    right    to       appeal   if   that

waiver is knowing and intelligent.                 United States v. Poindexter,

492 F.3d 263, 270 (4th Cir. 2007).                     Generally, if the district

court fully questions a defendant regarding the waiver of his

right to appeal during the plea colloquy performed in accordance

with   Fed.     R.     Crim.    P.    11,    the   waiver       is    both     valid     and

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

(4th Cir. 2005).          The question of whether a defendant validly

waived his right to appeal is a question of law that this court

                                             2
reviews de novo.         United States v. Blick, 408 F.3d 162, 168

(4th Cir. 2005).

            After     reviewing     the    record,       we   conclude      that    Hill

knowingly      and   voluntarily      waived       the    right      to    appeal   his

sentence, except based on claims of ineffective assistance of

counsel   or    prosecutorial       misconduct,      and      that   the    magistrate

judge fully questioned Hill regarding the appeal waiver at the

Fed. R. Crim. P. 11 hearing.          Accordingly, the waiver is valid.

            Hill claims that the appeal waiver is not enforceable

against him because the Government breached the plea agreement

by   arguing    at    sentencing    for    the     application       of    the   career

offender Guideline, even though it had not filed notice under

21 U.S.C. § 851 (2006) of its intent to seek enhanced penalties

against him.         This court “will not enforce an otherwise valid

appeal waiver against a defendant if the government breached the

plea agreement containing that waiver.”                  United States v. Cohen,

459 F.3d 490, 495 (4th Cir. 2006).                  The government breaches a

plea agreement when a promise it made to induce the plea goes

unfulfilled.         See Santobello v. New York, 404 U.S. 257, 262

(1971).     Because Hill did not raise his claim of breach in the

district court, we review it for plain error.                        See Puckett v.

United States, 129 S. Ct. 1423, 1428-29 (2009).

            After     review   of    the       record,   we    conclude      that   the

Government was not obligated by the terms of the plea agreement

                                           3
to refrain from arguing at sentencing for the application of the

career offender Guideline to Hill.             Accordingly, the Government

did not breach the plea agreement by so arguing without having

filed notice under 21 U.S.C. § 851.                  Hill’s claim of breach

fails,    and    the   plea   agreement      and    its     appeal   waiver    are

enforceable     against   him.     Because         Hill’s    challenge    to   the

application of the career offender Guideline falls within the

waiver’s scope, we grant the Government’s request in part and

dismiss this portion of the appeal.                 Hill, however, preserved

the right to appeal his sentence on the basis of ineffective

assistance of counsel.         Consequently, we deny the Government’s

request to dismiss in part.

              Turning, then, to Hill’s unwaived claim of ineffective

assistance of counsel, this claim is more appropriately raised

in a motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp.

2010), unless counsel’s ineffectiveness conclusively appears on

the record.      See United States v. Richardson, 195 F.3d 192, 198

(4th Cir. 1999).       Because we find no conclusive evidence on the

face     of   the   present    record       that    trial    counsel     rendered

ineffective assistance, we decline to address the merits of this

claim on direct appeal.       Accordingly, we affirm in part.




                                        4
            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




                                    5
