                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4296



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


SCOTT ANTHONY MARTIN, a/k/a Patsy Martin,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-00-82)


Submitted:   October 26, 2005          Decided:     November 15, 2005


Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Robert A. Ratliff, Mobile, Alabama, for Appellant.         Paul J.
McNulty, United States Attorney, Michael J. Elston, Laura M.
Everhart, Assistant United States Attorneys, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Scott    Anthony    Martin   pled   guilty   to   conspiracy    to

distribute and to possess with intent to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C. § 846 (2000).            The

district court sentenced him to a 292-month term of imprisonment.

Martin appeals his conviction and sentence, asserting that his

guilty plea is involuntary because counsel provided ineffective

assistance and that, in light of Blakely v. Washington, 542 U.S.

296 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), his

sentence violates the Sixth Amendment. The Government asserts that

Martin validly waived the right to appeal his sentence in the plea

agreement.    We agree with the Government and dismiss that portion

of the appeal.     We affirm Martin’s conviction.

          A defendant may waive the right to appeal if that waiver

is knowing and intelligent.     United States v. Blick, 408 F.3d 162,

169 (4th Cir. 2005).         Generally, if the district court fully

questions a defendant regarding the waiver of his right to appeal

during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid

and enforceable.    United States v. Wessells, 936 F.2d 165, 167-68

(4th Cir. 1991); United States v. Wiggins, 905 F.2d 51, 53-54 (4th

Cir. 1990).    A waiver of appeal does not prohibit the appeal of a

sentence imposed in excess of the statutory maximum, a sentence

based on a constitutionally impermissible factor such as race,

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), or


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proceedings conducted in violation of the Sixth Amendment right to

counsel following the entry of the guilty plea.            United States v.

Attar, 38 F.3d 727, 732-33 (4th Cir. 1994).

             Our review of the record leads us to conclude that Martin

knowingly and voluntarily waived the right to appeal his sentence.

See Blick, 408 F.3d at 169-73 (holding that plea agreement waiver

of right to appeal that district court accepted prior to Booker was

not invalidated by change in law effected by that decision).

Moreover, the sentencing issue raised on appeal falls within the

scope of the waiver.       See id. at 169-70.   We therefore dismiss this

portion of the appeal.

             Although the waiver provision in the plea agreement

precludes our review of Martin’s sentence, the waiver does not bar

review of the challenge to Martin’s conviction.             Martin contends

that   his     guilty   plea   is    invalid   because    counsel   provided

ineffective assistance by failing to inform him that drug amounts

had    to    be   proved    beyond    a   reasonable     doubt.     However,

“[i]neffective assistance claims are not cognizable on direct

appeal unless counsel’s ineffectiveness conclusively appears on the

record.”      United States v. James, 337 F.3d 387, 391 (4th Cir.

2003), cert. denied, 540 U.S. 1134 (2004).         We find that counsel’s

ineffectiveness does not conclusively appear on the face of this

record.      See United States v. McNamara, 74 F.3d 514, 515-17 (4th

Cir. 1996) (holding that counsel cannot be considered ineffective


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for failing to anticipate changes in law). We therefore decline to

address this issue in this appeal.

            Accordingly, we affirm Martin’s conviction and dismiss

the appeal of his sentence. 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.

                                   AFFIRMED IN PART; DISMISSED IN PART




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