                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4115


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICKY NELSON SIMPSON, a/k/a Bossman,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever,
III, Chief District Judge. (2:14-cr-00007-D-1)


Submitted:   October 20, 2015             Decided:   October 22, 2015


Before MOTZ, KEENAN, and THACKER, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam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


Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina,
for Appellant.   Kristine L. Fritz, OFFICE OF THE UNITED STATES
ATTORNEY, Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Ricky Nelson Simpson appeals the 96-month, below-Guidelines

sentence    imposed     after         he   pled     guilty,      pursuant          to   a   plea

agreement, to one count of conspiracy to distribute and possess

with intent to distribute 28 grams or more of cocaine base and

500   grams    or    more        of    cocaine,     in     violation         of    21   U.S.C.

§§ 841(b)(1)(B), 846             (2012).          Counsel       has    filed        a   brief,

pursuant to Anders v. California, 386 U.S. 738 (1967), in which

she   challenges       the       substantive        reasonableness           of     Simpson’s

sentence, but recognizes that Simpson waived his right to appeal

his sentence in his plea agreement.                      Simpson has filed a pro se

supplemental        brief    asserting        that        counsel      was        ineffective,

thereby resulting in the denial of his due process rights.                                   The

Government has filed a motion to dismiss the appeal based on the

appellate     waiver    in       Simpson’s     plea      agreement.          We     affirm    in

part, and dismiss in part.

      A defendant may waive the right to appeal if that waiver is

knowing and intelligent.                See United States v. Poindexter, 492

F.3d 263, 270 (4th Cir. 2007).                     Our independent review of the

record   supports      the        conclusion       that    Simpson      voluntarily          and

knowingly     waived        his       right   to    appeal       his     conviction          and

sentence.      Thus,        we    conclude     that       the   waiver       is     valid    and

enforceable.



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       However, even a valid waiver does not waive all appellate

claims.     Specifically, a valid appeal waiver does not preclude a

challenge    to      a   sentence      on   the   ground    that   it   exceeds   the

statutory       maximum      or        is    based    on     a     constitutionally

impermissible factor such as race, arises from the denial of a

motion to withdraw a guilty plea based on ineffective assistance

of counsel, or relates to claims concerning a violation of the

Sixth Amendment right to counsel in proceedings following the

guilty plea.         See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th

Cir. 1993).          Moreover, the appellate waiver in Simpson’s plea

agreement did not waive:               (1) any sentencing challenges he may

have if his sentence was in excess of the applicable advisory

Guidelines range established at sentencing; or (2) ineffective

assistance      of    counsel     or   prosecutorial       misconduct    claims   not

known to Simpson at the time of his guilty plea.                           Simpson’s

sentence is below the Guidelines range established at sentencing

and,    thus,     counsel’s       claim     is    squarely    foreclosed    by    the

appellate waiver.         Accordingly, we grant the Government’s motion

to dismiss the appeal, in part.




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       In accordance with Anders, we have reviewed the record for

any potentially meritorious, unwaived issues, * and we have found

none.       We therefore dismiss the appeal in part and affirm in

part.        This     court    requires      that     counsel   inform     Simpson,    in

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

United States for further review.                     If Simpson requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move this court for leave

to withdraw from representation.                    Counsel’s motion must state

that a copy thereof was served on Simpson.                            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 in the decisional process.



                                                                      AFFIRMED IN PART;
                                                                      DISMISSED IN PART




       *
       To the extent Simpson suggests that counsel provided
ineffective assistance, we conclude that ineffective assistance
does not conclusively appear on the record.    See United States
v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).



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