                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4685


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEON POWELL, a/k/a Deon Archie Powell,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:11-cr-00177-1)


Submitted:   March 19, 2013                 Decided:   April 4, 2013


Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for
Appellant. Monica D. Coleman, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Deon    Powell        was     sentenced      to     seventy-one          months’

imprisonment         after     pleading        guilty,        pursuant        to    a    plea

agreement, to possession of heroin, in violation of 18 U.S.C.

§ 841(a)(1) (2006).            On appeal, counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that he

found no meritorious issues for appeal but questioning whether

the district court erred in denying Powell’s pretrial motions to

suppress and overruling Powell’s objection to his drug quantity

calculation.           Powell        filed     a     pro     se    supplemental          brief

reiterating      counsel’s          arguments      and     asserting         several     other

alleged errors.         The Government has moved to dismiss Powell’s

appeal,    asserting         that     he    waived     the      right    to     appeal     his

sentence in the plea agreement.                    We dismiss in part and affirm

in part.

              We review de novo whether a defendant has effectively

waived the right to appeal.                  United States v. Marin, 961 F.2d

493, 496 (4th Cir. 1992).                    An appellate waiver must be “the

result of a knowing and intelligent decision to forgo the right

to appeal.”          United States v. Broughton-Jones, 71 F.3d 1143,

1146   (4th    Cir.    1995)     (internal         quotation       marks      and   citation

omitted).        To    determine           whether    a    waiver       is    knowing      and

intelligent,         this     court         examines       the      totality        of     the

circumstances,        including       the     defendant’s         experience,       conduct,

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educational         background,        and       familiarity     with     the        plea

agreement’s terms.          United States v. General, 278 F.3d 389, 400

(4th Cir. 2002).          Generally, if a district court fully questions

a defendant regarding the appellate waiver during the Rule 11

colloquy,     the      waiver   is    both   valid    and    enforceable.       United

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

this court will refuse to enforce an otherwise valid waiver if

enforcing the waiver would result in a miscarriage of justice.

Id.

             Upon review of the plea agreement and the transcript

of the Fed. R. Crim. P. 11 hearing, we conclude that Powell

knowingly and intelligently agreed to the waiver of appellate

rights as set forth in the plea agreement.                     During the Rule 11

colloquy, the court reviewed the terms of the plea agreement,

including the waiver provision, with Powell, and Powell affirmed

that    he   understood     those      terms.       Powell    admits    this    in    his

response     to   the    Government’s        motion   to    dismiss,    and    did   not

contest the waiver in his Anders brief.

             We next determine whether the issues Powell seeks to

raise on appeal fall within the scope of the appellate waiver.

Powell raises various allegations, including that the district

court   erred     in    denying      his   pretrial   motions    to     suppress     and

overruling his objection to the drug quantity calculation, and

that counsel forced him to lie about his guilt.                    However, Powell

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waived the right to appeal his sentence or the manner in which

it was determined on any ground, so long as his sentence was

below or within the Guidelines range corresponding to an offense

level of twenty-six.              Because Powell’s challenge regarding the

drug    quantity    calculation          concerns   the    manner    in    which       his

sentence was determined, and because Powell was sentenced within

the    Guidelines       range     corresponding      to    an    offense       level    of

twenty-four, Powell’s challenge to the drug quantity calculation

falls    squarely        within    the    scope     of    the    appellate      waiver.

Accordingly,       we     grant     the    Government’s         motion    to    dismiss

Powell’s appeal of his sentence.

            Powell’s challenge regarding his pretrial motions, and

the other claims in his pro se brief, concern his guilty plea

and not his sentence, and thus fall outside the scope of the

appellate waiver.          To the extent Powell claims his guilty plea

was involuntary, our review of the record compels the contrary

conclusion.         By    knowingly       and   voluntarily       pleading       guilty,

Powell   has   waived       appellate      review    of   the    remaining       claims.

United States v. Willis, 992 F.2d 489, 490-91 (4th Cir. 1993).

We also conclude that the record does not conclusively establish

that counsel was ineffective; accordingly, Powell’s ineffective

assistance claim is not cognizable on direct appeal.                              United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997).



                                            4
           In accordance with Anders, we have reviewed the entire

record and have found no meritorious issues for appeal.                     We

therefore affirm Powell’s conviction.

           This   court   requires     that    counsel   inform   Powell,    in

writing,   of   his   right    to   petition   the   Supreme   Court   of   the

United States for further review.              If Powell requests that a

petition be filed, but counsel believes such petition would be

frivolous, counsel may move in this court for leave to withdraw

from representation.          Counsel’s motion must state that a copy

thereof was served on Powell.              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.

                                                          AFFIRMED IN PART;
                                                          DISMISSED IN PART




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