                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4607


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

HAROLD ELLIS JACKSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:02-cr-00305-WDQ-1)


Submitted:   May 30, 2013                  Decided:   June 7, 2013


Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam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


Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, James G.
Warwick, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Harold Ellis Jackson appeals after pleading guilty to

bank robbery, in violation of 18 U.S.C. § 2113(b) (2006), and

challenges his 151-month sentence.                          On appeal, Jackson contends

that    his       guilty       plea   was   not    knowing            and   voluntary        because,

since he was sentenced in 2003, the law has changed and two

convictions used to qualify him as a career offender are no

longer      valid        predicate       felonies. 1             He    also      argues      that    he

received       ineffective            assistance       of    counsel          when     his    counsel

permitted          him    to    plead    guilty        and       stipulate        to    the    career

offender designation.                 We dismiss in part and affirm in part.

               The Government moved to dismiss the appeal based on

the     waiver       of     appellate       rights          in    Jackson’s          written     plea

agreement.           As part of the plea agreement, Jackson agreed to

waive       his     right       to    “appeal     whatever             sentence        is    imposed,

including any issues that relate to the establishment of the

guideline         range,       reserving    only       the       right      to    appeal      from   an

upward        or     downward          departure        from          the        guideline      range

established         at     sentencing.”           In    the       plea      agreement,        Jackson

admitted that he is a career offender under Guideline Section


        1
       The appeal was delayed, and there have been 28 U.S.C.A.
§ 2255 (West Supp. 2012) proceedings.       The district court
granted Jackson’s § 2255 motion in part and permitted a belated
appeal on July 31, 2012.



                                                  2
4B1.1, because he has previously been convicted of robbery with

a deadly weapon in 1995, battery in 1990, and robbery in 1985.

The      district      court     sentenced      Jackson           to     151      months’

imprisonment, at the low end of the Sentencing Guidelines range.

             A criminal defendant may waive the right to appeal if

that    waiver    is   knowing    and    intelligent.             United       States   v.

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).                           Generally, if

the district court fully questions a defendant regarding the

waiver of his right to appeal during a plea colloquy performed

in accordance with Fed. R. Crim. P. 11, the waiver is both valid

and enforceable.         United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).        As we recently explained, “the law ordinarily

considers a waiver knowing, intelligent, and sufficiently aware

if the defendant fully understands the nature of the right and

how it would likely apply in general in the circumstances—even

though     the    defendant      may    not   know     the     specific          detailed

consequences of invoking it.”             United States v. Thornsbury, 670

F.3d 532, 537 (4th Cir.) (internal alteration, quotation marks,

and    emphases     omitted),    cert.    denied,     133    S.    Ct.     196    (2012).

Whether a defendant validly waived his right to appeal is a

question of law we reviews de novo.                 United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).

             Jackson’s    counsel       did   not    contest       the    Government’s

assertions in the motion to dismiss that Jackson knowingly and

                                          3
voluntarily waived the right to appeal.                        Jackson now contends

that    his    guilty     plea    was    not    knowingly      and    voluntarily        made

because       the     Government,       Jackson,      and    the     court    erroneously

agreed that Jackson was a career offender.                            Jackson contends

that    his    Maryland        1990    battery      conviction       and     1985   robbery

conviction      do     not     qualify    as       predicate    offenses       under     U.S.

Sentencing Guidelines Manual § 4B1.1 (2002).                          These arguments,

however, are within the scope of the waiver.                          We conclude that

the record discloses that Jackson validly waived the right to

appeal his sentence.             The language of the appeal waiver is clear

and unambiguous.

               However, Jackson contends that the waiver should now

be     considered        invalid        and    unenforceable         because        of    the

beneficial change in law brought about by the decision in United

States v. Gomez, 690 F.3d 194 (4th Cir. 2012) (if an offense has

disjunctive          elements     that    enumerate         multiple       categories      of

crimes, at least one of which requires proof of violent force

and one which does not, a federal sentencing court may only then

apply    the        modified     categorical        approach    and     look    beyond      a

statutory definition to a limited list of judicial records found

in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v.

United    States,       544     U.S.     13    (2005)).        Jackson       argues      that,

because the law has been clarified in his favor, the appeal

waiver is no longer valid.                    He also contends that the appeal

                                               4
waiver does not bar a challenge to his conviction.                                  While the

conviction       is    not     specifically            included       in    the    waiver       of

appellate       rights,        Jackson          does     not        make     any     arguments

challenging his conviction.                     Instead, he only challenges the

calculation of his sentence—something he explicitly waived, and

ineffective assistance related to that claim.

            We reject Jackson’s challenge to the validity of the

waiver.         As     we     recently      explained          in    concluding          that    a

defendant’s      Simmons-based 2           challenge         to     his    career     offender

designation fell within the scope of an appeal waiver expressly

waiving    his       right    to     appeal      a     sentence      falling       within       the

advisory Guidelines range established at sentencing, “a party

cannot    ask    to    re-bargain         the    waiver      of     his    right    to    appeal

because of [post-plea] changes in the law.”                                United States v.

Copeland,       707    F.3d        522,   529-30        (4th      Cir.     2013)    (internal

quotation       marks        and    ellipsis         omitted).             Accordingly,          we

determine that the appeal waiver is valid and enforceable as to

Jackson’s sentencing claim and dismiss the claim.

            Next,       Jackson       argues         that    counsel       was     ineffective

during    the        plea    negotiations            phase     by    permitting          him    to

stipulate to the career offender designation.                              He contends that

he was prejudiced because, without the stipulation, he would

     2
         United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).



                                                5
have a Guidelines range of 63 to 78 months instead of 151 to 188

months.      Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.                          United States v. King, 119

F.3d 290, 295 (4th Cir. 1997).                          However, ineffective assistance

claims      are         cognizable         on    direct         appeal      if     the        record

conclusively           establishes         ineffective          assistance.            Massaro       v.

United States, 538 U.S. 1690, 1693-94 (2003); United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

                 To     demonstrate         ineffective         assistance,        a    defendant

must      show    that        his    “counsel’s         representation          fell     below       an

objective standard of reasonableness,” and that the error was

“prejudicial to the defense” such that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result      of         the      proceeding          would        have      been        different.”

Strickland v. Washington, 466 U.S. 668, 688, 692, 694 (1984).

Jackson contends that counsel should have raised a Shepard-based

challenge         and       objected       to   the      career     offender       enhancement.

Shepard     was        not     decided      until       2005,    approximately          two    years

after Jackson was convicted.                    At the time Jackson was sentenced,

it   is    undisputed           that      all   his     predicate       felonies       qualified.

Therefore,        there        was   no    reason       for     counsel    to     raise       such    a

challenge,            and     the    result     would         not   have    been       different.

Consequently,               there    is    no   ineffective          assistance          appearing

conclusively on the record.

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             We therefore grant in part the Government’s motion to

dismiss   the   appeal    and   dismiss    the    portion   of    the   appeal

challenging Jackson’s sentence.           We affirm the portion of the

appeal raising ineffective assistance of counsel.                 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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