                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4441



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


TREMAYNE K. GRAHAM, a/k/a Kiki,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:03-cr-01092-HMH-10)


Submitted:   April 24, 2008                 Decided:   May 6, 2008


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam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


Jessica Salvini, Greenville, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Deborah Brereton
Barbier, Mark C. Moore, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina; Leesa Washington, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Tremayne K. Graham pled guilty pursuant to a written plea

agreement to conspiracy to possess with intent to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846

(2000); possession with intent to distribute five kilograms or more

of   cocaine,    in    violation   of    21    U.S.C.   §   841(a)(1)   (2000);

conspiracy      to    launder   money,    in    violation    of   18    U.S.C.A.

§§ 1956(h), 1957 (West 2000 & Supp. 2007); aiding and abetting the

maintenance of a stash house, in violation of 18 U.S.C. § 2 (2000),

21 U.S.C.A. § 856(a)(1) (West 1999 & Supp. 2007); and failing to

appear before the court as required by the conditions of                pretrial

release, in violation of 18 U.S.C. § 3146(a)(1) (2000).                     The

district court sentenced Graham to life imprisonment, and Graham

timely appealed.

           The Government moved to dismiss the appeal prior to the

submission of briefs, contending the appeal was barred by the

appeal waiver contained in the plea agreement.              We deferred action

on the motion to dismiss and reinstated the briefing schedule.

Counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), asserting there are no meritorious issues for

appeal but suggesting the Government breached the plea agreement

and the district court erroneously found Graham breached the plea

agreement and imposed an improper sentence.             Graham filed a pro se

supplemental brief raising similar issues as well as claiming


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unfair treatment by the Government and ineffective assistance of

counsel.   The Government declined to file a responding brief.

           In the plea agreement, Graham waived the right to contest

either   the   conviction    or   the   sentence    on   appeal   or   in   any

post-conviction    action,    except     for   claims     of   prosecutorial

misconduct or ineffective assistance of counsel. Graham argues the

district court erroneously found Graham breached the plea agreement

and contends the Government was the breaching party.               A party’s

waiver of the right to seek appellate review is not enforceable

when the opposing party breaches the plea agreement.                   United

States v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001).

           When a party failed to raise in the district court the

issue of whether the plea agreement was breached, this Court

reviews the issue for plain error.         United States v. McQueen, 108

F.3d 64, 65-66 & n.1 (4th Cir. 1997) (citing United States v. Fant,

974 F.2d 559, 565 (4th Cir. 1992)).        The parties agreed to certain

stipulations amounting to a total offense level of forty, but these

stipulations were binding on the Government only if Graham complied

with all terms of the plea agreement.              As the Government amply

demonstrated at sentencing, Graham made false, incomplete, and

misleading statements to federal agents, thereby breaching the plea

agreement. Because of Graham’s violations, the Government was not

bound to its obligations under the plea agreement and could seek a




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greater sentence without breaching the agreement. Graham therefore

fails to demonstrate plain error in the district court’s findings.

             Graham    also    contends    the    district   court      erroneously

refused to credit him for acceptance of responsibility and failed

to require the Government to file a motion for downward departure.

As discussed above, Graham agreed to waive his right to challenge

his convictions and sentence on all claims except prosecutorial

misconduct and ineffective assistance of counsel.                  We will uphold

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

raised is within the scope of the waiver.              United States v. Blick,

408   F.3d   162,     168   (4th    Cir.   2005).      Having     determined     the

Government did not breach the plea agreement, we find Graham’s

valid appeal waiver forecloses his challenge to the sentence.

             In his pro se supplemental brief, Graham first alleges

the Government treated him unfairly by calling a co-defendant to

testify at the sentencing hearing.              We construe this allegation as

a claim of prosecutorial misconduct, which falls outside the scope

of the appeal waiver provision.            The claim, though reviewable, is

meritless,    as    the     conduct     complained   of   did     not   infect   the

proceedings with unfairness amounting to a denial of due process.

See United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002).

             Graham’s       pro    se   supplemental      brief     also    alleges

ineffective assistance of counsel, another claim outside the scope

of the waiver. Claims of ineffective assistance of counsel are not


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generally cognizable on direct appeal unless ineffective assistance

conclusively appears on the record.                See United States v. James,

337 F.3d 387, 391 (4th Cir. 2003).                  Graham fails to make this

showing.      Accordingly, we decline to consider this issue on direct

appeal.    Should Graham wish to do so, he may pursue this claim in

an appropriate motion for post-conviction relief.

              In accordance with Anders, we have reviewed the record in

this   case     and   have    found   no    meritorious       issues    for   appeal.

Accordingly, we grant the Government’s pending motion to dismiss

the appeal of the claims attacking Graham’s sentence, which are

barred by the valid and enforceable appeal waiver provision in the

plea agreement, and deny the motion as to the remaining claims.                    We

affirm Graham’s convictions and sentence to the extent Graham

raises claims outside the scope of the waiver provision.                           We

further deny Graham’s motion for appointment of new counsel and for

oral argument.

              This    court   requires      that   counsel     inform    Graham,   in

writing, of the right to petition the Supreme Court of the United

States for further review.            If Graham 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 Graham.               We dispense with oral argument

because the facts and legal contentions are adequately presented in


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the materials before the court and argument would not aid the

decisional process.



                                            DISMISSED IN PART;
                                              AFFIRMED IN PART




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