          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 May 5, 2009
                                 No. 08-50551
                               Summary Calendar             Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE URIAS-ARIANAS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 4:08-CR-4-17


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Jose Urias-Arianas pleaded guilty to aiding and abetting the possession
of marijuana with intent to distribute. See 18 U.S.C. § 2; 21 U.S.C. § 841. He
was sentenced to serve 78 months in prison. On appeal he challenges (1) the
district court’s application of the United States Sentencing Guidelines and (2)
his counsel’s effectiveness.




      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-50551

      We pretermit the issue whether the district court misapplied the
Sentencing Guidelines. In his plea agreement Urias waived the right to appeal
on all issues other than prosecutorial misconduct and the effectiveness of his
counsel. The appeal waiver did not reserve the right to appeal on the basis that
the Sentencing Guidelines were misapplied.
      A defendant may waive his statutory right to appeal in a valid plea
agreement if the waiver is knowing and voluntary. United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999). The defendant must understand that he has
a right to appeal and that he is giving up that right. United States v. Melancon,
972 F.2d 566, 568 (5th Cir. 1992). As part of the plea colloquy, a district court
must ascertain that the defendant understands any appeal waiver in the plea
agreement. F ED. R. C RIM . P. 11(b)(1)(N). In determining the validity of an
appeal waiver claim, a court ought to consider the defendant’s statements made
in court under oath. See Blackledge v. Allison, 431 U.S. 63, 74 (1977). “[T]he
best evidence of a defendant’s understanding when pleading guilty is the
colloquy closest to the moment he enters the plea.” United States v. Vonn, 535
U.S. 55, 74 (2002).
      At rearraignment, Urias informed the court that he had no type of mental
or physical impairment and was not under the influence of narcotics or
medication. He acknowledged signing the plea agreement and stated that the
signed plea agreement was accurate. He represented that he understood that
he was waiving his right to appeal or to collaterally attack his conviction and
sentence. He admitted that he had discussed his plea, the facts of his case, and
the sentencing process with his counsel.      When the court asked if he had
questions about the charge or a possible sentence, Urias answered no. He told
the court that he freely and voluntarily pleaded guilty to the aiding and abetting
charge because he was guilty of committing the crime. He swore that nothing
was promised for his guilty plea and that he had not been threatened, coerced,
or forced to enter it.

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                                  No. 08-50551

      Urias’s sworn representations show that his guilty plea was knowing and
voluntary, and they are entitled to “a strong presumption of verity.” Blackledge,
431 U.S. at 74. Urias’s appeal waiver is valid. Consequently, it precludes us
from considering his claim that the Sentencing Guidelines were misapplied.
      Urias also argues that he received ineffective assistance when his trial
counsel failed to plead him within the time stipulated in the plea agreement,
which Urias claims resulted in his losing the one-level adjustment for acceptance
of responsibility. Additionally, Urias contends that his counsel failed to object
to the PSR and instead chose to seek a downward departure.
      Although Urias’s appeal waiver reserved the right to challenge Urias’s
counsel’s effectiveness, that challenge is not properly before us. This circuit’s
general rule “is that a claim of ineffective assistance of counsel cannot be
resolved on direct appeal when the claim has not been raised before the district
court since no opportunity existed to develop the record on the merits of the
allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). We
will consider, on direct appeal, claims of inadequate representation only if the
record allows a fair analysis of the claims’ merits. If the claims cannot be
properly evaluated on the record, we must—without prejudice to the defendant’s
right to raise them in a later proceeding—decline to review them. United States
v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008).
      Urias’s instant claims of ineffective assistance of counsel were not
presented to or addressed by the district court. Consequently, those claims were
not adequately developed before being asserted in this court. We therefore
decline to address them in this appeal, but we reserve to Urias the right to raise
them in a 28 U.S.C. § 2255 motion. See Gulley, 526 F.3d at 821.
      AFFIRMED.




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