                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4493


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PAMELA KAY OXENDINE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:14-cr-00075-FL-2)


Submitted:   December 14, 2015            Decided:   February 2, 2016


Before THACKER and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


John K. Wiles, CHESHIRE PARKER SCHNEIDER & BRYAN, PLLC, Raleigh,
North Carolina, for Appellant.         Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Pamela Kay Oxendine pled guilty, pursuant to a written plea

agreement,      to    possession         of    stolen       firearms       and    aiding      and

abetting,      in    violation      of    18    U.S.C.       §§ 922(j),          924(a)(2),     2

(2012).      The     district       court      sentenced      Oxendine       to     a   within-

Guidelines      sentence      of    37    months’       imprisonment.             On    appeal,

Oxendine argues that the district court erroneously calculated

her     Guidelines      range       and       that     she    was        denied     effective

assistance of counsel at sentencing.

       The   Government       seeks       to        enforce       the     appellate      waiver

provision      of    the    plea     agreement         and    has       moved     to    dismiss

Oxendine’s      appeal.        In    response,         Oxendine         asserts        that   the

issues she raises on appeal are outside the scope of the waiver.

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

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

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                               Generally, “if the

record establishes that the waiver is valid and that the issue

being    appealed      is    within       the       scope    of    the     waiver,”      it    is

enforceable.         United States v. Thornsbury, 670 F.3d 532, 537

(4th    Cir.    2012)       (internal          quotation          marks     omitted).          A

defendant’s waiver is valid if she agreed to it “knowingly and

intelligently.”            United States v. Manigan, 592 F.3d 621, 627

(4th Cir. 2010).            “Although the validity of an appeal waiver

often depends on the adequacy of the plea colloquy, the issue

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ultimately     is    evaluated     by    reference     to    the     totality    of    the

circumstances,” United States v. Davis, 689 F.3d 349, 355 (4th

Cir.   2012)      (internal     quotation      marks   omitted),       such     as    “the

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

educational background and familiarity with the terms of the

plea    agreement.”            Thornsbury,      670    F.3d     at     537     (internal

quotation marks omitted).           We review de novo whether a defendant

has effectively waived her right to appeal.                        United States v.

Copeland, 707 F.3d 522, 528 (4th Cir. 2013).

       In her plea agreement, Oxendine agreed to waive her right

to appeal a within-Guidelines sentence, but reserved her right

to raise on appeal issues of ineffective assistance of counsel

or prosecutorial misconduct.               Oxendine does not challenge the

validity of her waiver of appellate rights, but contends that

the issues she raises on appeal are outside the scope of the

waiver.

       As   the     district     court    imposed      a     sentence        within    the

Guidelines range established at sentencing, Oxendine’s challenge

to her sentence falls within the scope of the waiver and may not

be   reviewed      by   this    court.      However,        Oxendine’s       claim    that

counsel was ineffective at sentencing is outside the scope of

the waiver and is subject to appellate review.                          Nevertheless,

claims of ineffective assistance of counsel should be raised in

a 28 U.S.C. § 2255 (2012) motion rather than on direct appeal,

                                           3
unless       the     appellate       record      conclusively          demonstrates

ineffective assistance.           United States v. Benton, 523 F.3d 424,

435   (4th    Cir.    2008).        Because     the    record       here    does     not

conclusively show that counsel was constitutionally ineffective,

we decline to review this claim on direct appeal.

      Accordingly,      we    grant    in     part    and    deny     in    part     the

Government’s       motion    to   dismiss,    and    dismiss    the    appeal.        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




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