                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4786


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEMP EARL MITCHELL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:12-cr-00550-CCB-1)


Submitted:   April 17, 2014                 Decided:   April 21, 2014


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Ron Earnest, LAW OFFICE OF RON EARNEST, Riverdale, Maryland, for
Appellant.   David I. Sharfstein, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Kemp Earl Mitchell pled guilty, pursuant to a written

plea agreement, to conspiracy to distribute and possess with

intent    to    distribute       heroin,     21    U.S.C.    §    846   (2012).           He

received        a     below-Guidelines            sentence       of     144     months’

imprisonment.          On     appeal,    Mitchell’s      counsel      filed     a    brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that there are no meritorious grounds for appeal but questioning

the adequacy of the guilty plea colloquy and the propriety of

Mitchell’s sentence.             Mitchell has filed a pro se supplemental

brief challenging his sentence under Alleyne v. United States,

133 S. Ct. 2151 (2013), and the adequacy of the plea colloquy.

He    also     alleges       appellate    counsel     has    rendered     ineffective

assistance by filing an Anders brief.                    The Government has moved

to    dismiss       Mitchell’s    appeal     of    his   sentence       based       on   the

appellate waiver provision in the plea agreement.                        We grant the

Government’s         motion     and     dismiss      Mitchell’s       appeal    of       his

sentence, and we affirm Mitchell’s conviction.

               We review a defendant’s waiver of appellate rights de

novo.        United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).       “A defendant may waive his right to appeal if that

waiver is the result of a knowing and intelligent decision to

forgo the right to appeal.”                  United States v. Amaya–Portillo,

423   F.3d     427,    430    (4th    Cir.   2005)    (internal       quotation      marks

                                             2
omitted); see United States v. General, 278 F.3d 389, 400 (4th

Cir. 2002) (providing standard).         Generally, if the district

court fully questions the defendant about the waiver during the

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

enforceable.    United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005).     We will enforce a valid waiver so long as “the

issue being appealed is within the scope of the waiver.”      Blick,

408 F.3d at 168.

          Our review of the record leads us to conclude that

Mitchell’s     waiver   of   appellate   rights   was   knowing   and

intelligent.     Turning to the scope of the waiver, we conclude

that the sentencing issues Mitchell raises in the Anders brief

and the pro se supplemental brief fall within the scope of the

appellate waiver provision.       Thus, we grant the Government’s

motion to dismiss Mitchell’s appeal of his sentence and dismiss

this portion of the appeal.

          The waiver provision does not, however, preclude our

review of Mitchell’s conviction pursuant to Anders.          We have

reviewed the plea colloquy for plain error and have found none.

See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002)

(providing standard); see also United States v. Olano, 507 U.S.

725, 732 (1993) (detailing plain error standard).

          The waiver provision also does not preclude our review

of Mitchell’s claim that appellate counsel rendered ineffective

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assistance by failing to file a merits brief.                            Such claims,

however, are not generally cognizable on direct appeal.                             United

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

the   record     does    not    establish        that    appellate       counsel      was

ineffective,     we     will    not     review     Mitchell’s         claim    at    this

juncture.       United States v. Martinez, 136 F.3d 972, 979 (4th

Cir. 1998) (providing standard).

            In accordance with Anders, we have reviewed the entire

record and have found no unwaived and potentially meritorious

issues for review.         We therefore affirm Mitchell’s convictions.

This court requires that counsel inform Mitchell, in writing, of

his right to petition the Supreme Court of the United States for

further review.         If Mitchell requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

counsel   may    move    in    this   court      for    leave    to     withdraw     from

representation.       Counsel’s motion must state that a copy thereof

was served on Mitchell.          We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before      this    court    and     argument       would    not   aid     the

decisional process.

                                                                  AFFIRMED IN PART;
                                                                  DISMISSED IN PART




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