                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4606



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARCUS PAYSOUR,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00083-H)


Submitted:   January 17, 2008             Decided:   January 30, 2008


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Marcus Paysour pled guilty, pursuant to a written plea

agreement, to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2000).            The

district court imposed the advisory guidelines sentence of 120

months’ imprisonment.

            On appeal, Paysour’s attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), stating

that there are no meritorious issues for appeal because Paysour’s

written plea agreement contains a waiver of appellate rights.

Nonetheless, the Anders brief questions whether Paysour’s sentence

was unreasonable.        Paysour filed a pro se supplemental brief

arguing    ineffective    assistance    of   counsel   and   prosecutorial

misconduct.    The Government has moved to dismiss the appeal based

on the appeal waiver.       We grant the motion in part and dismiss the

appeal with regard to the sentencing issues raised. After a review

of the record under Anders, we affirm Paysour’s conviction as to

all other claims.

            This court reviews the validity of a waiver de novo,

United States v. Brown, 232 F.3d 399, 403 (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).         To assess the validity

of   the   waiver,   this    court    examines   the   “totality   of   the


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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 and

citation    omitted).    Generally,   if   the   district   court   fully

questions a defendant regarding the waiver of his right to appeal

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

and enforceable.    United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 (4th

Cir. 1991).

            In his pro se supplemental brief, Paysour contends that

his guilty plea, including the appeal waiver, was not voluntary.

Because Paysour did not move in the district court to withdraw his

guilty plea, any error committed during the Rule 11 hearing is

reviewed for plain error. United States v. Martinez, 277 F.3d 517,

526 (4th Cir. 2002).     A defendant’s statements at a guilty plea

hearing are presumed true. See Blackledge v. Allison, 431 U.S. 63,

73-74 (1977).    Unsupported subsequent allegations are insufficient

to overcome representations at the hearing.        Id. at 74; see also

United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991); Via v.

Superintendent, Powhatan Corr. Ctr., 643 F.2d 167, 171 (4th Cir.

1981).     Under the totality of the circumstances presented in the

record, we find Paysour’s appeal waiver knowing and voluntary, and

therefore enforceable.


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           The waiver expressly precluded Paysour from appealing any

sentence that was within or below the advisory guidelines range.

Because the sentence imposed was not above the advisory guidelines

range,   any   challenge    to    the    sentence     imposed,    including   the

sentencing issue raised in Paysour’s Anders brief, falls within the

scope of the waiver. Accordingly, we grant the Government’s motion

to dismiss Paysour’s appeal as to the sentencing claims raised.

           The waiver’s enforceability does not completely dispose

of this appeal, however.         The appeal waiver expressly permitted an

appeal   based    upon     ineffective          assistance   or   prosecutorial

misconduct not known to Paysour at the time of his guilty plea.

Accordingly, the waiver provision does not foreclose Paysour’s

right to appeal with respect to issues not covered by the waiver.

See United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993).

           In his pro se brief, Paysour offers four grounds upon

which he claims his trial counsel was constitutionally ineffective.

Claims of ineffective assistance of counsel generally are not

cognizable on direct appeal.         United States v. King, 119 F.3d 290,

295 (4th Cir. 1997). Instead, to allow for adequate development of

the record, a defendant generally must bring his ineffective

assistance claims in a motion under 28 U.S.C. § 2255 (2000).                  See

id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).                 An

exception exists where the record conclusively shows ineffective

assistance.    United States v. Baldovinos, 434 F.3d 233, 239 (4th


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Cir.), cert. denied, 546 U.S. 1203 (2006). Because the record does

not conclusively show that Paysour’s counsel was ineffective, we

decline to consider Paysour’s claims on direct appeal.

           Finally, Paysour offers two grounds upon which he claims

prosecutorial misconduct.      To prevail on a claim of prosecutorial

misconduct, a defendant must show (1) that the prosecutor’s remarks

and conduct were, in fact, improper and (2) that such remarks or

conduct prejudiced the defendant to such an extent as to deprive

the defendant of a fair trial.        United States v. Allen, 491 F.3d

178, 191 (4th Cir. 2007).      We find Paysour has failed to meet his

burden on either ground.

           Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal.            We therefore affirm

Paysour’s conviction and dismiss as to his sentence.              This court

requires that counsel inform his client, in writing, of his right

to petition the Supreme Court of the United States for further

review.   If Paysour requests that such 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 Paysour.




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          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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