                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4880



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


PAUL DOUGLAS BAKER,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-12)


Submitted:   July 2, 2004             Decided:   September 15, 2004


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Michael A. Kolb, Charlotte, North Carolina, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Gretchen C. F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a written plea agreement, Paul Douglas Baker

pled guilty to a single count of conspiracy to possess with intent

to distribute cocaine and cocaine base, in violation of 21 U.S.C.

§    846   (2000),   and     was    sentenced       to    a     292-month       term    of

imprisonment.      Counsel has filed a brief in accordance with Anders

v.   California,     386   U.S.     738    (1967),     questioning           whether    the

district    court    erred     in   sentencing        Baker     to     292    months     of

imprisonment.        Counsel    concedes,         however,      that    there     are    no

meritorious issues for appeal.             Baker filed a pro se supplemental

brief raising issues covered by counsel’s Anders brief.

            Excepting claims of ineffective assistance of counsel and

prosecutorial misconduct, Baker waived his right to appeal the

judgment in his plea agreement and at the Fed. R. Crim. P. 11

hearing.    A defendant may waive his right to appeal his conviction

and sentence 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); United States v. Wessells, 936 F.2d 165, 168

(4th Cir. 1991).      Such waivers of appeal rights will be enforced

except where the defendant:           (1) challenges his sentence on the

ground that it exceeds the statutory maximum or is based on a

constitutionally      impermissible          factor      such    as     race,     United

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); (2) appeals


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from the denial of a motion to withdraw his plea because of

ineffective assistance of counsel, United States v. Craig, 985 F.2d

175, 178 (4th Cir. 1993); or (3) asserts a violation of the Sixth

Amendment right to counsel in proceedings following the guilty

plea.    United States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994).

            Whether a waiver of the right to appeal is knowing and

intelligent depends on the facts and circumstances surrounding its

making,    including    the   defendant’s    background,     experience,      and

conduct.     United States v. Davis, 954 F.2d 182, 186 (4th Cir.

1992).     A waiver is ineffective if the district court fails to

question the defendant about it, Wessells, 936 F.2d at 167-68,

unless other evidence in the record shows that the waiver was

informed and voluntary.       Davis, 954 F.2d at 186.        We review de novo

the validity of a waiver.         Marin, 961 F.2d at 496.

            Baker’s waiver of appeal is valid.        The record is absent

any evidence pointing to a misunderstanding regarding the waiver of

appellate rights or the validity of Baker’s plea.              Therefore, the

sentencing issues addressed in the Anders brief are dismissed.

            Baker’s     counsel     raises   the    issue     of    ineffective

assistance of counsel as an Anders issue.                   An allegation of

ineffective assistance of counsel should not proceed on direct

appeal    unless   it   appears     conclusively    from    the     record    that

counsel’s    performance      was    ineffective.          United    States     v.

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


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because it is not clear that counsel was ineffective, and in fact

the evidence in the record reveals quite competent representation,

this claim should be dismissed based on an inadequate record.

Baker is free to assert this claim in a 28 U.S.C. § 2255 (2000)

motion.

            Baker’s    counsel    also   contends   that   the   Government’s

failure to move for a downward departure for substantial assistance

constitutes    prosecutorial       misconduct.   The   Government    was   not

obligated under its plea agreement with Baker to so move, see

United States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000), and there

is no indication that it refused to make the motion based on an

unconstitutional motive.         See Wade v. United States, 504 U.S. 181,

185-86 (1992).       Therefore, this claim fails.

            We have examined the entire record in this case in

accordance with the requirements of Anders, and find no meritorious

issues for appeal.        Accordingly, we dismiss the issues covered by

the waiver of appeal and affirm the remaining issues.             Counsel has

filed   a   motion   to   withdraw   from    representation.      This   court

requires that counsel inform his client, in writing, of his right

to petition the Supreme Court of the United States for further

review. Thus, we deny the motion to withdraw.              If Baker requests

that a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may renew his motion in this court

for leave to withdraw from representation. Counsel's motion must


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state that a copy thereof was served on the client. 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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