                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5087



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


PANAGOITIS SKORDALOS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:06-cr-00107-RDB)


Submitted:   September 21, 2007           Decided:   October 16, 2007


Before MOTZ, KING, and GREGORY, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


W. Warren Hamel, VENABLE, LLP, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Gregory Welsh, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Panagoitis Skordalos appeals from his conviction and 180-

month sentence for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2000).*            Skordalos contends

that his waiver of the right to appeal his sentence, which was

included in his plea agreement, was not knowing and voluntary

because   he   was   not   provided   notice   that   the   waiver   covered

imposition of the mandatory minimum sentence of fifteen years

pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e) (2000). Skordalos further asserts that the district court

erred in determining that his prior convictions for resisting

arrest and accessory after the fact to murder qualified as violent

felonies for purposes of the ACCA.        Finally, Skordalos claims that

his trial counsel was ineffective in failing to adequately advise

him on the likely application of the ACCA and the fifteen-year

mandatory minimum sentence, and that counsel did not raise adequate

objections at sentencing regarding his prior felony convictions.

The Government has moved to dismiss the appeal on the ground that

Skordalos validly waived his right to appeal.          Upon review of the


     *
      Following Skordalos’ notice of appeal, the Government filed
a motion to dismiss, asserting that in light of the appellate
waiver agreed to by Skordalos as part of his plea agreement, there
was no basis to challenge the sentence imposed. Upon review of
Skordalos’ notice of appeal, this court deferred action on the
motion to dismiss, as Skordalos raised an ineffective assistance of
counsel claim that was not foreclosed by the terms of the appellate
waiver. See United States v. Skordalos, No. 06-5087 (4th Cir. Mar.
27, 2007) (unpublished).

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record, we grant the motion to dismiss in part and dismiss the

appeal    of    the   district    court’s       determination    that   Skordalos

qualified as an armed career criminal.                  As for the remaining

claims, we deny the motion to dismiss, but nonetheless affirm

Skordalos’ conviction and sentence.

               Pursuant to a plea agreement, a defendant may waive his

appellate rights under 18 U.S.C. § 3742 (2000).                 United States v.

Wiggins,    905    F.2d   51,    53    (4th   Cir.   1990)   (waiver    upheld   as

voluntarily and intelligently made).                 Whether a defendant has

waived his right to appeal is an issue of law subject to de novo

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

A waiver will preclude appeal of a specific issue if the record

establishes that the waiver is valid and that the issue is within

the scope of that waiver.             United States v. Attar, 38 F.3d 727,

731-33 (4th Cir. 1994).               The validity of a waiver depends on

whether the defendant knowingly and intelligently agreed to waive

the right to appeal.       Id. at 732.        This determination is based on

the totality of the circumstances, including the adequacy of the

plea colloquy and the experience and conduct of the defendant.

United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).

               Skordalos claims that the Government’s motion to dismiss

should be denied on the ground that his waiver of the right to

appeal was not knowing or voluntary.                  Skordalos asserts that

neither the plea agreement nor the Fed. R. Crim. P. 11 colloquy


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adequately notified him that the waiver encompassed any appeal of

the mandatory minimum sentence imposed pursuant to the ACCA or a

“substantially increased sentence” based on his criminal history

category.    During the Rule 11 plea colloquy, the district court

asked Skordalos if he understood the appellate rights he was

surrendering.    Skordalos conferred with his attorney and asked the

court to repeat its explanation, and the court informed him that he

had waived any right to appeal from a sentence within or below an

advisory guideline range resulting from an adjusted base offense

level of 30.     Skordalos conferred with counsel a second time and

told the court that he understood the waiver provision.               The

district court again went over the terms, and Skordalos stated that

he understood.    Both attorneys agreed with the court’s explanation

of the waiver.

            Skordalos notes that the district court incorrectly used

the term “criminal history” in place of “total offense level” at

one point in explaining the waiver.      However, this verbal mixup is

not a ground for relief, especially in light of the fact that the

district court accurately explained the waiver provision in the

sentences    immediately   preceding   and    following   its   erroneous

statement.       While   Skordalos   claims   that   he   had   expressed

uncertainty at the hearing as to the import of the waiver, the

record reflects that he twice conferred with counsel on this issue

and stated to the court that he understood the terms of the waiver.


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Therefore, we find that the explanation of the appellate waiver was

adequate.

            Skordalos   also     claims    that   the   district   court’s

explanation of the appellate waiver did not apprise him of the

impact his criminal history would have on his guidelines range or

that the waiver also covered any determination as to his status as

an armed career criminal and the resulting mandatory minimum.

However, the district court addressed these issues during the

hearing, informing Skordalos that “there is no agreement as to your

criminal history,” and detailing at length how his past criminal

convictions could affect his sentence.        Skordalos also stated that

he had discussed the Sentencing Guidelines with his attorney and

that he understood his criminal history would be a major factor in

determining his sentence.         The district court also addressed

Skordalos’ possible status as an armed career criminal, as well as

the consequences of such a finding, at multiple points during the

hearing.

            Skordalos   claims     the    district    court   should   have

explicitly informed him that the appellate waiver encompassed any

appeal of the imposition of a mandatory minimum sentence, as the

180-month mandatory minimum cut off most of the lower guidelines

range for offense level 30.       With a criminal history category V,

and in the absence of a statutory mandatory minimum, the guidelines

range would be between 151 and 188 months.           However, the terms of


                                   - 5 -
the appellate waiver provided that Skordalos waived his right to

appeal from any sentence within or below the guidelines range

resulting from an offense level of 30.                The district court also

noted this point during the plea colloquy, reading the text of the

relevant portion of the plea agreement to Skordalos and asking him

if he understood, to which he replied in the affirmative.                         The

district court also addressed, at length, the fact that Skordalos

could be subject to a mandatory minimum sentence based on his

criminal history.

               While the district court did not explicitly state that

the    armed      career    criminal   determination      was   covered      by   the

appellate waiver, such specificity was not required, as the broad

terms of the appellate waiver certainly took this matter into

account.       Skordalos was aware that he was facing a possible 180-

month mandatory minimum sentence based on his criminal history, and

that his appellate waiver barred any appeal from any sentence

within a guidelines range resulting from an offense level of 30.

Given Skordalos’ offense level of 30, the guidelines range was 180

months   -     the    mandatory   minimum    sentence    for    an   armed   career

criminal - to 188 months.         Skordalos was sentenced at the bottom of

that range.          To the extent that Skordalos’ claim relates to the

validity of his plea waiver, we affirm his conviction.                 See Attar,

38    F.3d   at      733   n.2.   To   the   extent     Skordalos    is   actually

challenging his sentence, rather than the voluntariness of his


                                       - 6 -
plea, the appeal is barred by the waiver provision.              Accordingly,

the   district     court’s      determination       that    Skordalos’     prior

convictions for resisting arrest and accessory to murder after the

fact qualified as violent felonies is not reviewable on appeal.

           Skordalos’ remaining claims relate to alleged ineffective

assistance    on   the   part    of   his   trial   counsel.      A     claim   of

ineffective assistance of counsel should be raised in a 28 U.S.C.

§ 2255 (2000) motion rather than on direct appeal, unless the

record conclusively demonstrates ineffective assistance.                  United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (internal

citations and quotations omitted).            Such a claim cannot be fairly

adjudicated on direct appeal where the appellant has not raised the

issue before the district court and there is no statement from

counsel on the record.          United States v. DeFusco, 949 F.2d 114,

120-21 (4th Cir. 1991).          There is no conclusive evidence in the

record   to   support    Skordalos’     ineffective        assistance    claims.

Therefore, Skordalos’ claims should be raised as part of a § 2255

motion rather than on direct appeal.

           Accordingly, we grant the Government’s motion to dismiss

Skordalos’ appeal of his sentence, deny the Government’s motion to

dismiss Skordalos’ appeal as to his challenges to the voluntariness

of his appellate waiver and the effectiveness of his trial counsel,

and affirm as to those claims.              We dispense with oral argument

because the facts and legal contentions are adequately presented in


                                      - 7 -
the materials before the court and argument would not aid the

decisional process.



                                            DISMISSED IN PART;
                                              AFFIRMED IN PART




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