                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-4884


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRANCE MCCRAY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:13-cr-00046-JRS-1)


Submitted:   May 22, 2014                        Decided:    May 28, 2014


Before TRAXLER,    Chief    Judge,   and   HAMILTON   and   DAVIS,   Senior
Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam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


Robert L. Flax, Richmond, Virginia, for Appellant.     Dana J.
Boente, Acting United States Attorney, Thomas K. Johnstone IV,
Special Assistant United States Attorney, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Terrance       McCray      appeals   from   his     conviction       and

twenty-four-month sentence after he pled guilty pursuant to a

plea agreement to one count of conspiracy to commit bank fraud

and mail theft, in violation of 18 U.S.C. §§ 371, 1344, 1708

(2012).      McCray asserts that the criminal judgment against him

should be vacated because he argues it was plain error for him

to   plead      guilty    with    the     misapprehension    that      his   federal

sentence would run concurrent to the state sentence he was then

serving. 1       In   response, the Government invokes               the appellate

waiver in McCray’s plea agreement, which provides that McCray

waived    his    right     to    appeal   his   conviction     and    any    sentence

within the five-year stautory mandatory maximum applicable to

his conviction.          We affirm in part and dismiss in part.

             A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2012).                  United States v.

Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                          We review the

validity of an appellate waiver de novo and will uphold a waiver

      1
       Because counsel submitted an advocate’s brief on the
merits, we decline counsel’s invitation to perform a review
under Anders v. California, 386 U.S. 738 (1967), should we find
his primary argument to be meritless. McCoy v. Court of Appeals
of Wis., Dist. 1, 486 U.S. 429, 439 n.13 (1988) (“The Anders
requirement assures that indigent defendants have the benefit of
. . . a diligent and thorough review of the record and an
identification  of   any  arguable   issues  revealed   by  that
review.”).



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of appellate rights if the waiver is valid and the issue being

appealed is covered by the waiver.                       United States v. Blick, 408

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

                  An   appellate       waiver       is    valid     if    the    defendant’s

agreement to the waiver was knowing and intelligent.                                    Id. at

169.     To determine whether a waiver is knowing and intelligent,

we examine “the totality of the circumstances, including the

experience and conduct of the accused, as well as the accused’s

educational background and familiarity with the terms of the

plea agreement.”            United States v. General, 278 F.3d 389, 400

(4th Cir. 2002) (internal quotation marks omitted).                               Generally,

if a district court fully questions a defendant regarding the

waiver       of    appellate     rights     during        the     Fed.   R.     Crim.    P.   11

colloquy and the record indicates that the defendant understood

the    significance         of   the    waiver      and    was     not   denied    effective

assistance of counsel, the waiver is valid.                              United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).                          The totality of the

circumstances compels the conclusion that McCray knowingly and

intelligently waived his right to appeal and, thus, his appeal

is barred, at least in part, by the appellate waiver.

                  Despite    the       foregoing,         McCray     contends       that      he

misunderstood that his federal sentence could be run consecutive

to     his    state      sentence,       thereby         rendering       his    guilty     plea

unknowing and involuntary.                  Although a defendant’s waiver of

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appellate   rights     cannot   foreclose       a   colorable   constitutional

challenge   to   the   voluntariness       of   a   guilty   plea,   see,   e.g.,

United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir.

1994), Rule 11 does not require that a district court inform a

defendant that a sentence may be imposed consecutive to another

sentence.     See General, 278 F.3d at 395.                  In fact, Rule 11

requires, in relevant part, that the court “inform the defendant

of, and determine that the defendant understands, . . . any

maximum possible penalty, including imprisonment, fine, and term

of supervised release[.]”         Fed. R. Crim. P. 11(b)(1)(H).              The

magistrate judge—to whose jurisdiction McCray consented—complied

with this requirement.          We nonetheless conclude that McCray’s

plea agreement, the magistrate judge’s Rule 11 colloquy, and the

assurances McCray made during that colloquy were sufficient to

render his plea knowing and voluntary.

            Accordingly, to the extent McCray raises claims within

the scope of the appellate waiver, we dismiss in part.                        We

nonetheless affirm in part to the extent McCray raises claims

not barred by the appellate waiver. 2                 We dispense with oral


     2
       Although McCray summarily asserts he received ineffective
assistance of counsel, a claim not barred by the appellate
waiver in his plea agreement, the record does not conclusively
demonstrate that counsel was ineffective. See United States v.
Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (“A defendant can
raise the claim of ineffective assistance of counsel . . . on
direct appeal if and only if it conclusively appears from the
(Continued)
                                       4
argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                    AFFIRMED IN PART;
                                                    DISMISSED IN PART




record   that    his   counsel        did   not   provide   effective
assistance[.]”).



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