                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4058



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KEVIN PATRICK LYONS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-04-26)


Submitted:   September 28, 2005           Decided:   October 26, 2005


Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam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


Vaughan S. Winborne, Jr., Raleigh, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Thomas R. Ascik, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Kevin Patrick Lyons appeals the district court’s judgment

entered pursuant to his guilty plea to conspiracy to possess with

intent to distribute methamphetamine and marijuana, in violation of

21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2005).   Lyons’s attorney

has filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), arguing issues that Lyons raised in his pro se notice

of appeal: (1) the court erred in finding Lyons subject to sentence

enhancement under 21 U.S.C. § 851 (2000); (2) the court erred in

sentencing Lyons inconsistently with stipulations in the plea

agreement; and (3) counsel was ineffective in failing to challenge

the § 851 enhancement.   In a supplemental brief, counsel for Lyons

asserts that, despite our recent decision in United States v.

Blick, 408 F.3d 162, 170 (4th Cir. 2005), Lyons should not be held

to the waiver of appellate rights in his plea agreement.      Lyons,

informed of his right to file a pro se brief, has not done so.   The

Government, in a response to Lyons’s supplemental brief, asserts

that the waiver of appellate rights should be enforced.

          A defendant may waive his right to appeal as part of a

plea agreement.   United States v. Wiggins, 905 F.2d 51, 53 (4th

Cir. 1990).   However, the waiver must be knowing and voluntary.

United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000).       This

court reviews de novo the validity of a waiver.     United States v.

Marin, 961 F.2d 493, 496 (4th Cir. 1992).


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          In this case, Lyons agreed in his plea agreement to waive

his right to appeal on all grounds except ineffective counsel,

prosecutorial misconduct, and “the sentence, but only to the extent

defendant contests the sentence that one or more findings on

guidelines issues were inconsistent with the explicit stipulations

contained in any paragraph in the plea agreement. . . .”       The

magistrate judge conducted a thorough Fed. R. Crim. P. 11 colloquy.

Lyons stated that he had discussed with his attorney his right to

appeal and agreed to waive that right with the noted exceptions.

Lyons was forty years old at the time, with a ninth grade education

and a G.E.D.

     We conclude that Lyons’s waiver was knowing and voluntary. We

further hold that, in accordance with our decisions in United

States v. Johnson, 410 F.3d 137, 152-53 (4th Cir. 2005), petition

for cert. filed , __ U.S.L.W. __ (U.S. Sept. 7, 2005) (No. 05-

6215), and in Blick, 408 F.3d at 170-71, that Lyons’s waiver of his

right to appeal that was accepted prior to the Supreme Court’s

decision in United States v. Booker, 125 S. Ct. 738 (2005), is not

invalidated by the change in law effected by that decision.

          Given a valid appeal waiver, the second issue under Blick

is whether the claims raised by the defendant are within the scope

of the waiver.   Blick, 408 F.3d at 168.   Lyons’s claim that the

district court erred in enhancing his sentence under § 851 is

clearly within the scope of the waiver.    Lyons also asserts that


                              - 3 -
the calculation of his sentencing range under the guidelines

violated stipulations in the plea agreement.              However, the plea

agreement contained no stipulations constraining the guidelines

computation except a provision that the Government would recommend

the amount of methamphetamine known or reasonably foreseeable to

Lyons as 500 grams to 1.5 kilograms.        That drug quantity was used

in calculating Lyons’s sentence. Therefore, we find the sentencing

claims to be within the scope of the waiver and dismiss the appeal

as to these claims.

          Lyons also asserted that counsel was constitutionally

ineffective   because   he   led   Lyons   to   believe    that   the   §    851

enhancement would not be pursued. Claims of ineffective assistance

are not within the scope of the waiver.          However, “[i]neffective

assistance claims are not cognizable on direct appeal unless

counsel’s ineffectiveness conclusively appears on the record.”

United States v. James, 337 F.3d 387, 391 (4th Cir. 2003).                   Our

review of the record discloses no such conclusive evidence that

Lyons received ineffective assistance of counsel.           Accordingly, we

affirm as to this claim.

          In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   We therefore dismiss in part and affirm in part.                  This

court requires that counsel inform Lyons, in writing, of his right

to petition the Supreme Court of the United States for further


                                   - 4 -
review.    If Lyons requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on

Lyons.    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.


                                                 DISMISSED IN PART;
                                                   AFFIRMED IN PART




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