                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4593


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

VICTOR STEWART ELLERBEE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:07-cr-00326-D-1)


Submitted:    October 23, 2008             Decided:   November 14, 2008


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


Dismissed in part; affirmed in part by unpublished per curiam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


James B. Craven, III, Durham, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Victor       Stewart     Ellerbee          appeals       from       his   228-month

sentence       after      pleading     guilty           to    armed       bank    robbery,       in

violation      of    18     U.S.C.    § 2113(a),             (d)    (2000).         On    appeal,

Ellerbee contends the district court erred in designating him as

a career offender and that he received ineffective assistance of

counsel. 1      In response, the Government has filed a motion to

dismiss      Ellerbee’s       appeal,       asserting              that     pursuant     to     the

appellate waiver contained in his plea agreement, there is no

basis to challenge the sentence imposed.                              The Government also

contends     there     is    no    evidence        in    the       record    indicating       that

Ellerbee’s attorney provided ineffective assistance.

             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




     1
      Ellerbee has also filed a pro se supplemental brief in
which he claims his trial attorney committed fraud and asks this
court to review his sentence.



                                               2
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).

              Ellerbee contends that his criminal history did not

justify designation as a career offender, as two of his prior

offenses should not have been considered separately under U.S.

Sentencing      Guidelines          Manual    § 4A1.2(a)(2)                (2007).        However,

this claim is squarely within the scope of the appellate waiver,

as Ellerbee waived his right to appeal his sentence, “including

any    issues   that     relate       to    the    establishment             of    the    advisory

Guideline range.”             See United States v. Blick, 408 F.3d 162,

172-73 (4th Cir. 2005).                While Ellerbee reserved the right to

appeal    a     sentence          imposed     in        excess        of     the     established

Guidelines      range,       his    sentence       of    228     months       was    within      the

Guidelines range of 188 to 235 months.                          Accordingly, Ellerbee’s

claim is barred by the appellate waiver.

              Ellerbee       also    contends          that    he     received       ineffective

assistance of counsel.               Ellerbee asserts that he would not have

entered into his plea agreement had he known that he could have

been   classified       as    a     career    offender,          as    his    trial       attorney

allegedly failed to discuss this matter with him and led him to

believe    that    he    would       receive       a    sentence       between       70    and    87

months.    According to the terms of the plea agreement, claims of

ineffective       assistance         of      counsel       are        not     barred      by     the

appellate waiver.            However, these claims should be raised in a

                                               3
28 U.S.C. § 2255 (2000) motion rather than on direct appeal

unless    the    record   conclusively       demonstrates    ineffective

assistance.     See United States v. King, 119 F.3d 290, 295 (4th

Cir. 1997).     Such a claim cannot be fairly adjudicated on direct

appeal when 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).     Because the existing record fails to conclusively

support Ellerbee’s assertions that counsel provided ineffective

assistance, any such claim must be raised as part of a § 2255

motion rather than on direct appeal. 2

           Accordingly,   we   grant   the    Government’s    motion   to

dismiss as to Ellerbee’s sentencing claims.          As for Ellerbee’s

claims that he received ineffective assistance of counsel, we

deny the Government’s motion to dismiss as to those claims, but

nonetheless affirm the district court’s judgment.            We dispense

with oral argument because the facts and legal contentions are




     2
      Ellerbee also asks this court to issue a “new rule” that
appeal waivers do not serve the interests of justice and are not
enforceable.     However,   we  have   consistently  upheld   the
enforceability of appellate waivers.       See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (citation omitted).



                                  4
adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                    DISMISSED IN PART;
                                                      AFFIRMED IN PART




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