                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4635



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JEREMY LUJAN AIKEN, a/k/a Jeremy Lajuan Aiken,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-04-92)


Submitted:   January 11, 2006             Decided:   February 6, 2006


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kurt W. Meyers, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Jeremy Lujan Aiken pled guilty to one count of aiding and

abetting the possession with intent to distribute more than fifty

grams of cocaine base and one count of possession of a firearm by

a felon, in violation of 18 U.S.C. §§ 2, 922(g)(1); 21 U.S.C.

§ 841(a)(1) (2000), and was sentenced to 224 months’ imprisonment.

Aiken appeals his sentence, alleging ineffective assistance of

counsel and claiming his sentence was unreasonable under United

States v. Booker, 543 U.S. 220 (2005).    For the reasons explained

below, we affirm the sentence.

          Aiken, who was a career offender, was assigned a base

offense level of thirty-seven.      See U.S. Sentencing Guidelines

Manual § 4B1.1 (2004).     The district court applied a three-level

adjustment for acceptance of responsibility, thereby giving Aiken

an adjusted offense level of thirty-four.       Aiken was assessed

sixteen criminal history points, which placed him in criminal

history category VI.     The resulting advisory guideline range was

262 to 327 months.

          Both Aiken and his counsel objected to the Presentence

Investigation Report; however, the district court overruled their

objections.   The Government moved for a two-level reduction under

USSG § 5K1.1.   The district court granted the Government’s motion

and adjusted Aiken’s offense level to thirty-two, thereby making

the final guideline range 210 to 262 months.    The findings in the


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presentence      report,    as    amended,    were      adopted   and    the    court

sentenced Aiken to imprisonment for 224 months on Count One and

imposed a concurrent sentence of 120 months on Count Two.

            On appeal, Aiken’s counsel raises the following issues:

(1) whether trial defense counsel was ineffective for failing to

note    that     Aiken    was    “subject    to    an    undischarged      term      of

imprisonment”; and (2) whether the district court’s “fail[ure] to

consider [Aiken’s] sentencing argument in any context other than

the    mandatory    guideline     scheme”    violated      Aiken’s      right   to    a

“reasonable sentence” under Booker.               In response, the Government

argued the record did not establish that trial defense counsel

provided ineffective assistance.            Further, the Government asserted

Aiken waived the right to challenge his sentence under the terms of

his plea agreement.

            Aiken first contends he received ineffective assistance

of    counsel.      An    ineffective   assistance        of   counsel    claim      is

generally not cognizable on direct appeal, but should instead be

asserted in a post-conviction petition under 28 U.S.C. § 2255

(2000).    See, e.g., United States v. Richardson, 195 F.3d 192, 198

(4th Cir. 1999).         However, we have recognized an exception to the

general rule when “it ‘conclusively appears’ from the record that

defense counsel did not provide effective representation.”                        Id.

(citation omitted).




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           Aiken specifically alleges his counsel was ineffective

for “fail[ing] to object to any mention of the [undischarged] State

sentence in an effort to mitigate such a lengthy sentence as

[Aiken] looked likely to receive.”                He bases this assertion on

§ 5G1.3, which provides that in “cases involving an undischarged

term of imprisonment, the sentence for the instant offense may be

imposed    to    run        concurrently,       partially   concurrently,      or

consecutively to the prior undischarged term of imprisonment to

achieve a reasonable punishment for the instant offense.”                     USSG

§ 5G1.3(c).      Aiken, however, fails to establish how such an

objection would have changed the proceedings.               As acknowledged in

his brief on appeal, “[i]t is apparent from the record that

everyone was aware that [he], at the time of sentencing, was

subject to an undischarged term of imprisonment.”                 Furthermore, §

5G1.3   leaves   it    to    the   court’s    discretion    to   determine    what

sentence should be imposed.          For these reasons, it is not apparent

from the face of the record that Aiken’s counsel was ineffective

and Aiken’s claim is therefore not cognizable on appeal.

           Next,      Aiken     seeks    to     challenge   his    sentence    as

“unreasonable” under Booker.            The Government argues this issue is

precluded by the appeal waiver in Aiken’s plea agreement.                Though

Aiken argues he could not “waiv[e] a right that did not exist at

the time of his waiver,” he fails to address this court’s decision

in United States v. Blick, 408 F.3d 162 (4th Cir. 2005).               In Blick,


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we determined that so long as a defendant has effectively waived

his right to appeal, and the issue the defendant seeks to appeal is

within the scope of such waiver, the terms of the agreement will be

enforced.   See id. at 168-72.       Furthermore, we explicitly rejected

the argument now advanced by Aiken.              See id. at 170 (“We also

reject Blick’s contention that he could not have knowingly waived

his rights under Booker . . . because that case had not been

decided when he entered into the plea agreement.”).

            Aiken does not allege that the plea agreement was entered

into involuntarily or without an understanding of its consequences.

The language of the agreement is clear and unambiguous.                Aiken

explicitly agreed to waive all rights under both Apprendi and

Blakely.     He   agreed   to   be   sentenced    in   accordance   with   the

guidelines and acknowledged that the maximum sentence was governed

by the United States Code.       Furthermore, as noted by the district

court, the terms of the plea agreement were favorable to Aiken as

several charges were dismissed “[a]nd rather than facing a life

sentence . . . he face[d] only a 210- to 262-month window for

sentencing under the Guidelines.”            Therefore, we conclude the

appeal waiver is both valid and enforceable. Additionally, Aiken’s

challenge to the reasonableness of his sentence clearly falls

within the scope of the waiver and, as such, the terms of the

agreement will be enforced.




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           We therefore affirm the sentence imposed by the district

court.   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




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