                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4453


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BERNARD KEITH MARTIN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:08-cr-00230-1)


Submitted:    November 9, 2009             Decided:   November 20, 2009


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


John R. McGhee, Jr., KAY, CASTO & CHANEY, PLLC, Charleston, West
Virginia, for Appellant.    J. Christopher Krivonyak, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Bernard Keith Martin appeals his conviction, following

his   guilty      plea    to     one       count    of     aiding    and       abetting   the

possession with intent to distribute a quantity of oxycodone, in

violation of 18 U.S.C. § 2 (2006) and 21 U.S.C. § 841(a)(1)

(2006),    and     the    151-month         sentence       he   received.           Martin’s

attorney     filed       his   appellate           brief    pursuant       to    Anders    v.

California,       386     U.S.     738       (1967),       averring        there    are    no

meritorious issues for appeal, but asking this court to consider

the   district     court’s       decision       to    sentence       Martin      within   the

sentencing       range     applicable          to     a    career     offender.            The

Government       moves    to   dismiss       the     appeal     on   the    basis    of   the

waiver of appellate rights contained in Martin’s plea agreement.

            Martin filed a pro se supplemental brief in which he

argues he received ineffective assistance of counsel because his

attorney failed to properly advise Martin regarding the impact

of accepting the guilty plea.                  For the reasons set forth below,

we dismiss the appeal in part and affirm in part.

            We first conclude that Martin has waived his right to

appeal     his    sentence.            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).     This court reviews the validity of an appellate waiver

de novo, and will enforce the waiver if it is valid and the

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issue appealed is within the scope thereof.                             United States v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005).

             An appeal waiver is valid if the defendant knowingly

and    intelligently        agreed   to    the          waiver.        Id.   at    169.     To

determine      whether      a   waiver    is       knowing       and   intelligent,        this

court examines the background, experience, and conduct of the

defendant.        United States v. Broughton-Jones, 71 F.3d 1143, 1146

(4th    Cir.      1995).        Generally,         if    the     district     court       fully

questions a defendant regarding the waiver during the Fed. R.

Crim. P. 11 plea colloquy, the waiver is valid and enforceable.

United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).

We have reviewed the record and conclude that Martin knowingly

and intelligently entered into the plea agreement and understood

the appeal waiver.

             We      further    conclude       the       issue    raised      in    counsel’s

Anders brief falls within the scope of the waiver.                                 The waiver

provides that, save for an issue related to the determination of

the    Sentencing      Guidelines        range      for     which      an    objection      was

“properly preserved,” Martin waived “his right to seek appellate

review of any sentence . . . on any other ground, so long as

that sentence is below or within the Sentencing Guideline range

determined      by    the   District      Court         prior     to   any    departure      or

variance.”



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            Although conceding at the sentencing hearing that he

was properly classified a career offender under the Guidelines,

Martin    argued      that    he     should        be    sentenced       below    the     range

resulting from the career offender designation.                            This, however,

was not an objection to the district court’s “determination of

the Sentencing Guideline range,” which is what was excepted from

the appellate waiver.              Accordingly, we conclude the appellate

waiver bars Martin’s claim that he was sentenced too harshly and

thus   grant     in   part     the      Government’s            motion    to    dismiss     the

appeal.

            The appellate waiver does not, however, preclude us

from     considering         Martin’s      claim             that   his        attorney    was

ineffective for failing to explain that pleading guilty would

foreclose appellate review of the district court’s order denying

his pre-trial motion to suppress.                            Nor does it foreclose our

Anders    review      of     Martin’s     Rule          11    hearing     and    conviction.

Therefore, we deny the motion to dismiss in part.

            Unless an attorney’s ineffectiveness is conclusively

apparent    on    the      face    of    the       record,      ineffective       assistance

claims are not generally addressed on direct appeal.                                    United

States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); United

States     v.    Richardson,       195     F.3d         192,     198     (4th    Cir.     1999)

(providing standard and noting that ineffective assistance of

counsel claims generally should be raised by motion under 28

                                               4
U.S.C. § 2255).        The record as it exists now is insufficient to

determine whether there is any basis for Martin’s claim, and

Martin’s     bare   assertion    regarding     his   attorney’s    performance,

standing alone, is inadequate to carry his burden.                 Benton, 523

F.3d at 435.         Accordingly, we decline to consider on direct

appeal Martin’s ineffective assistance of counsel claim.

             We have examined the entire record in accordance with

the requirements of Anders, including the integrity of the Rule

11 hearing, and have found no unwaived and meritorious issues

for appeal.         Accordingly, we grant the Government’s motion to

dismiss as to Martin’s sentence, deny the motion as to Martin’s

conviction, and affirm Martin’s conviction.                 Further, we deny

counsel’s motion to withdraw.             This court requires that counsel

inform Martin, in writing, of the right to petition the Supreme

Court   of   the     United   States     for   further   review.     If   Martin

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 Martin.                  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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