UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 97-4608
KENNETH EUGENE MCDANIEL, a/k/a
Sealed Defendant 94-111-33,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-94-111)

Submitted: January 29, 1999

Decided: February 25, 1999

Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

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COUNSEL

Joseph Michael McGuinness, Elizabethtown, North Carolina, for
Appellant. Robert J. Conrad, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Kenneth Eugene McDaniel appeals from his conviction of one
count of conspiracy to distribute crack cocaine, 21 U.S.C. § 846
(1994), for which he was sentenced to twenty years in prison.
McDaniel's counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), addressing whether the district court complied
with the requirements of Fed. R. Crim. P. 11 in accepting McDaniel's
guilty plea. McDaniel has filed a supplemental pro se brief in which
he claims that the district court failed to inform him of the mandatory
minimum sentence and failed to comply with the procedures provided
in 21 U.S.C. § 851(b) (1994).

McDaniel signed a written plea agreement in October 1995 in
which he agreed to waive his right to appeal his sentence or convic-
tion, except for claims regarding ineffective assistance of counsel or
prosecutorial misconduct. At the Rule 11 hearing, McDaniel stated
that he had read the plea agreement and that he understood it. The
court informed him of the nature of the charge to which the plea was
offered, that the mandatory minimum term of imprisonment was ten
years, that the court was required to consider applicable sentencing
guidelines and would not determine the applicable sentencing guide-
lines range until after a presentence report was prepared, and that the
court could depart from the guidelines. McDaniel stipulated a factual
basis for the plea and acknowledged that he had a right to plead not
guilty, that he had the right to a jury trial, and that pleading guilty
would waive the right to a trial. McDaniel acknowledged that he had
knowingly waived his appellate rights under the plea agreement.
Accordingly, the district court held that the plea was informed and
voluntary.

A defendant may waive the right to appeal if that waiver is know-
ing and intelligent. In determining whether a waiver is knowing and
intelligent, we examine the background, experience, and conduct of
the defendant. We have held that, if the district court fully questions
a defendant regarding waiver of his right to appeal during the Fed. R.
Crim. P. 11 colloquy, generally the waiver is valid and enforceable.
See United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).

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However, a waiver of appeal rights does not prohibit the appeal of a
sentence imposed in excess of the statutory maximum or one that is
based on a constitutionally impermissible factor such as race, see
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), or proceed-
ings following entry of a guilty plea that were conducted in violation
of a defendant's Sixth Amendment right to counsel. See United States
v. Attar, 38 F.3d 727 (4th Cir. 1994).

The transcript of McDaniel's Rule 11 hearing reveals that he
understood the full significance of the waiver provision of his plea
agreement. McDaniel stated that he had reviewed the written plea
agreement with his attorney and that he was satisfied with counsel's
services. The Government summarized the plea agreement, including
the waiver provision. McDaniel acknowledged his signature on the
agreement and stated that he understood and agreed with the Govern-
ment's summary. When the magistrate judge specifically asked
McDaniel about the waiver, he stated that he understood he was waiv-
ing his right to appeal. On these facts, we find that McDaniel's waiver
was knowingly and intelligently given. Because McDaniel's claims
regarding the validity of his guilty plea are precluded by his valid
waiver of his appeal rights, we dismiss the appeal as to these claims.

In his supplemental pro se brief, McDaniel states that he wishes to
"preserve" his claims of ineffective assistance of counsel. McDaniel
concedes that claims of ineffective assistance of counsel are not cog-
nizable on direct appeal unless counsel's deficient performance
plainly appears on the face of the record. See United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Rather, these claims
must be brought in a habeas corpus proceeding under 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1998). Because ineffective assistance
does not plainly appear on the face of this record, McDaniel must
raise any such claims by way of a § 2255 motion.*

We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
We deny McDaniel's attorney's motion to withdraw as counsel. The
court requires that counsel inform his client, in writing, of his right
_________________________________________________________________
*Accordingly, McDaniel's motion for production of a state court tran-
script at government expense is hereby denied.

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to petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel's motion
must state that a copy thereof was served on the client. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

DISMISSED

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