                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-4469


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

HIGINIO PADRON VAZQUEZ, a/k/a Paco,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:00-cr-00212-FDW-9)


Submitted:    May 20, 2010                    Decided:    June 11, 2010


Before WILKINSON and      DUNCAN,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Aaron E.      Michel, Charlotte, North Carolina, for Appellant.
Edward R.    Ryan, Acting United States Attorney, Charlotte, North
Carolina;     Amy E. Ray, Assistant United States Attorney,
Asheville,    North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Higinio Padron Vazquez pled guilty to conspiracy to

possess    with      intent    to    distribute      marijuana     and     cocaine,    in

violation      of    18   U.S.C.         §§ 841(a)(1),     846    (2006).        He   was

sentenced to 132 months’ imprisonment and a four-year term of

supervised release.           On appeal, Vazquez challenges the district

court’s     imposition        of     a    four-level     enhancement       under      U.S.

Sentencing Guidelines Manual § 3B1.1(a) (2007), for a leadership

role in the offense.                He argues that the enhancement and the

denial of a safety valve reduction were error, constituted                              a

breach of the plea agreement, and were further based on other

misconduct      by    the     prosecutor       and     ineffective    assistance       of

defense     counsel.          For    the     reasons    that     follow,    we     affirm

Vazquez’s conviction and sentence.

               The record discloses that Vazquez waived his right to

appeal    his       conviction       and    sentence      except     for    claims     of

prosecutorial misconduct and ineffective assistance of counsel.

Whether    a    defendant      effectively        waived    his    right    to     appeal

pursuant to a plea bargain is an issue of law that is reviewed

de novo.       United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).     Where the government seeks to enforce an appeal waiver

and the appellant does not contend that the government is in

breach of its plea agreement, a waiver will be enforced if the

record shows the waiver is valid and the challenged issue falls

                                              2
within the scope of the waiver.                       Id.        Conversely, this court

will not enforce an otherwise valid waiver where the Government

has    breached       the   plea   agreement      containing            the       waiver.     See

United States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006).

              Here, Vazquez argues that he was misled by his defense

counsel and the prosecutor into believing that the factual basis

to which he and the Government stipulated in the plea agreement

“settled        all    material     factual       disputes.”                 He     claims    his

detrimental reliance on these representations renders his plea

unknowing       and    involuntary.        He     contends             the    Government      was

duplicitous in gaining a waiver of his trial rights in a case it

could probably not win at trial and that it used a “bait-and-

switch”       tactic.        He    further       maintains         that        the    testimony

received        at    sentencing     was     hearsay             and     not       sufficiently

reliable.

              We find Vazquez knowingly and voluntarily waived in

his    plea     agreement     his    right       to    appeal          his    conviction      and

sentence, which includes the four-level role enhancement and the

denial of application of the safety valve provision.                                 See United

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)

(holding that an appeal waiver is valid if it is “the result of

a     knowing    and    intelligent     decision            to    forgo        the    right    to

appeal.”) (internal quotation marks and citations omitted); see

also United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)

                                             3
(noting that an appeal waiver is generally valid and enforceable

if defendant fully questioned during plea colloquy).                                   Vazquez’s

contention that the Government breached the plea agreement is

unsupported      by     the     record.              In    the        plea     agreement,   the

Government stipulated to a base offense level and the amount of

drugs attributable to Vazquez.                       It did not, however, agree not

to seek an offense-level enhancement.                            In fact, the Government

“reserve[d]      the    right    to    inform         the       court    and    the    probation

officers    of    all    facts    pertinent               to    the     sentencing      process,

including     all      relevant       information               concerning       the    offenses

committed, whether charged or not.”                            Because the agreement was

knowingly and voluntarily entered, the appeal waiver bars the

appeal of Vazquez’s direct claim that the trial court erred in

imposing the four-level leadership enhancement and in denying

application of the safety valve provision.

            Vazquez’s         claims        of       prosecutorial             misconduct   and

ineffective assistance of counsel are not barred by the waiver.

Unless an attorney’s ineffectiveness is apparent on the face of

the   record,     ineffective         assistance               claims    are    not    generally

addressed on direct appeal.                  United States v. James, 337 F.3d

389, 391 (4th Cir. 2003).                   To show ineffective assistance of

counsel, Vazquez must show that counsel’s performance fell below

an    objective       standard        of     reasonableness              under     “prevailing

professional        norms”      and        was       prejudicial.              Strickland    v.

                                                 4
Washington, 466 U.S. 668, 687-88, 692 (1984).                    The prejudice

prong is satisfied if Vazquez can demonstrate that “there is a

reasonable     probability    that,   but   for    counsel’s    unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694.      Within the guilty plea context, a defendant meets

the prejudice prong by showing there is a reasonable probability

that absent counsel’s error he would not have pled guilty and

would have insisted on going to trial.               Hill v. Lockhart, 474

U.S. 52, 59 (1985).       We reject Vazquez’s claims of prosecutorial

misconduct and find that ineffective assistance of counsel does

not appear on the face of the record.

             Accordingly,     we   affirm     Vazquez’s        conviction    and

sentence.      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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