                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4733


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NESTOR VLADAMIR SANDOVAL ROCA, a/k/a Poeta, a/k/a William
Bladamir Mexmurillo Zapatero, a/k/a Stanley Turcio Palma,
a/k/a William Santander Mendoza, a/k/a Hamilton Bachelet
Soto, a/k/a Benjamil Ortiz, a/k/a William Zapatero, a/k/a
Max, a/k/a Lzandra Santander Orester, a/k/a Jorge Alberto
Medina Alonso,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10-
cr-00472-RWT-1)


Submitted:   March 28, 2013                 Decided:   April 9, 2013


Before DAVIS, KEENAN, and FLOYD, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland, for Appellant.      Christen Anne Sproule, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Nestor Vladamir Sandoval Roca pled guilty, pursuant to

a   written      plea    agreement,         to       conspiracy        to   distribute     and

possess with intent to distribute at least 280 grams of cocaine

base and at least five kilograms of cocaine, in violation of 21

U.S.C. § 846 (2006); two counts of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006);

and unauthorized re-entry of a deported alien after conviction

of an aggravated felony, in violation of 8 U.S.C. § 1326(a),

(b)(2) (2006).           On appeal, Roca asserts that the trial court

erred in its calculation of his criminal history and that trial

counsel    was    ineffective         in    failing         to   object       to   the   trial

court’s calculation of Roca’s criminal history.                               Relying on the

waiver    of     appellate         rights    in       Roca’s     plea       agreement,     the

Government has moved to dismiss this appeal.                           We dismiss in part

and affirm in part.

               Pursuant to a plea agreement, a defendant may waive

his appellate rights.              United States v. Manigan, 592 F.3d 621,

627 (4th Cir. 2010).               A waiver will preclude an appeal of “a

specific issue if . . . the waiver is valid and . . . the issue

being    appealed       is   within    the       scope      of   the    waiver.”         United

States    v.    Blick,       408   F.3d     162,      168    (4th      Cir.    2005).      The

question whether a defendant validly waived his right to appeal



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is a question of law that this court reviews de novo.                           Manigan,

592 F.3d at 626.

             “An    appellate     waiver      is   valid       if    the       defendant

knowingly     and   intelligently        agreed    to    [waive      the       right    to

appeal].”     Id. at 627.       To determine whether a waiver is knowing

and intelligent, we examine “the totality of the circumstances.”

Id. (internal quotation marks omitted).                 “An important factor in

such an evaluation is whether the district court sufficiently

explained the waiver to the defendant during the Federal Rule of

Criminal Procedure 11 plea colloquy.”                Id.; see United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

             Roca does not challenge the validity of his guilty

plea   but   does    challenge    the     validity      of   the     waiver      of    his

appellate rights.      Our review of the record leads us to conclude

that Roca’s appellate waiver was both knowing and voluntary.

Because the waiver is valid and precludes Roca’s challenge to

the calculation of his criminal history category, we grant in

part the Government’s motion to dismiss and dismiss this portion

of the appeal.

             Although Roca’s challenge to his sentence is barred,

the appellate waiver does not bar his claim that trial counsel

was    ineffective.       See     Johnson,     410      F.3d    at       151    (stating

ineffective    assistance       claims    following      entry      of    guilty       plea

cannot be waived); see also Strickland v. Washington, 466 U.S.

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668,   688,     694    (1984)     (providing      standard).             Nevertheless,

ineffective     assistance        of    counsel   claims        are     not    generally

cognizable on appeal unless ineffective assistance “conclusively

appears from the record.”              United States v. Baldovinos, 434 F.3d

233, 239 (4th Cir. 2006).               Because ineffective assistance does

not conclusively appear on this record, we decline to review

Roca’s claim.         Roca must bring his claim — if at all — in a 28

U.S.C.A. § 2255 (West Supp. 2012) motion in order to allow for

adequate   development       of    the    record.         See    United       States   v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

           Accordingly, we deny in part the Government’s motion

to   dismiss    and    affirm     the    remainder    of        the    judgment.       We

dispense      with    oral   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 IN PART;
                                                                   AFFIRMED IN PART




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