                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4181


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CLYDE AUSTIN GRAY, JR., a/k/a Poochie,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:09-cr-00326-GBL-2)


Submitted:   August 17, 2010                 Decided:   September 2, 2010


Before KING, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rebecca Sue Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Timothy D.
Belevetz,   Assistant   United  States   Attorney,  Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Clyde       Gray     appeals       his       conviction         and       136    month

sentence for one count of conspiracy to commit bank fraud in

violation of 28 U.S.C. § 1349.                       The Government has moved to

dismiss, citing Gray’s waiver of appellate rights.                                   We deny the

Government’s motion and affirm.

            Gray     argues       on    appeal:           (1)      that     his       apparently

untimely appeal         should    be     allowed         to   go    forward          because    his

trial   counsel     rendered       ineffective            assistance            in    failing    to

advise Gray that he could file an appeal; and (2) that trial

counsel     rendered        ineffective             assistance             by        failing     to

investigate       the    case     and       object       to   two     separate         two-level

enhancements to Gray’s offense level.

            With        respect        to     Gray’s          first        contention,          the

Government does not oppose the appeal going forward as timely.

Because the time limits for noting an appeal in a criminal case

are not jurisdictional, and may be waived by the Government, we

have jurisdiction to consider the remaining claim.                                    See United

States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009) (“the non-

statutory   time        limits    in    Appellate         Rule      4(b)        do    not   affect

subject-matter jurisdiction”).

            The     Government         urges       the    court       to    dismiss         Gray’s

appeal as waived.           While Gray did execute an otherwise valid

appellate waiver at the time he entered his guilty plea, claims

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of ineffective assistance of counsel are generally exempt from

the ambit of such waivers.               See United States v. Johnson, 410

F.3d 137, 151 (4th Cir. 2005); United States v. Attar, 38 F.3d

727, 732 (4th Cir. 1994).            Accordingly, we deny the motion to

dismiss because we do not agree that Gray has waived his right

to make this ineffective assistance of counsel claim on appeal.

            That said, claims of ineffective assistance of counsel

are generally not cognizable on direct appeal.                     United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997).                    Rather, to allow for

adequate development of the record, a defendant must bring his

claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion.                       Id.    An

exception      exists       when   the     record    conclusively       establishes

ineffective assistance.            United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999).

            We       have     reviewed     the    record     and    conclude        that

ineffective assistance of counsel is not present on its face.

The   claim      is    therefore     not       cognizable     on   direct     appeal.

Accordingly, we affirm the judgment of the district court.                           We

dispense      with     oral    argument     because     the     facts   and     legal

contentions are adequately presented in the materials before the

court and argument would not assist the decisional process.



                                                                            AFFIRMED



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