                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-5188


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

SANDRA ELLIOTT,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:09-cr-00383-BO-1)


Submitted:   June 22, 2012                   Decided:   July 2, 2012


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Ronnie M. Mitchell, THE MITCHELL LAW GROUP, Fayetteville, 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Unpublished opinions are not binding precedent in this circuit.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:

            Sandra Elliott pled guilty, pursuant to a written plea

agreement, to health care fraud, and aiding and abetting, in

violation of 18 U.S.C.A. § 1347 (West 2006 & Supp. 2012) and 18

U.S.C. § 2 (2006).      The district court sentenced Elliott to 120

months’ imprisonment.         On appeal, Elliott argues that she was

denied effective of assistance of counsel at sentencing and that

her sentence was unreasonable.

            The Government seeks to enforce the appellate waiver

provision   of   the   plea    agreement   and   has    moved   to   dismiss

Elliott’s appeal.      In response, Elliott 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 (2006).            United States v.

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

must be “the result of a knowing and intelligent decision to

forgo the right to appeal.”         United States v. Broughton-Jones,

71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and

citation omitted).      We review de novo whether a defendant has

effectively waived her right to appeal.          United States v. Marin,

961 F.2d 493, 496 (4th Cir. 1992).

            In her plea agreement, Elliott agreed to waive her

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

right to raise on appeal issues of ineffective assistance of

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counsel or prosecutorial misconduct.                      Elliott 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, Elliott’s challenge

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

be    reviewed    by    this     court.           However,    Elliott’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.A. § 2255 (West Supp. 2012) motion rather than on

direct     appeal,      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        the     Government’s    motion     to

dismiss in part and deny it in part.                       We dismiss the appeal of

Elliott’s      sentence    and    otherwise         affirm     the    judgment   of   the

district    court.        We   dispense       with    oral     argument    because    the

facts    and    legal   contentions          are    adequately       presented   in   the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                      AFFIRMED IN PART;
                                                      DISMISSED IN PART




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