                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4299


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSEPH THOMAS SMITH, a/k/a Joseph Smith,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:10-cr-00199-HEH-1)


Submitted:   October 31, 2011             Decided:   November 17, 2011


Before KING, GREGORY, and DAVIS, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Theodore David Bruns, BLACKBURN, CONTE, SCHILLING & CLICK, P.C.,
Richmond, Virginia, for Appellant.      Roderick Charles Young,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Pursuant to a written plea agreement, Joseph Thomas

Smith    pled       guilty       to     carjacking           resulting            in    death.         The

district court sentenced Smith to life imprisonment. On appeal,

Smith’s    counsel         has        filed       a       brief    pursuant            to   Anders      v.

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

viable    grounds         for     appeal,         but       questioning           whether        Smith’s

guilty plea was knowing and voluntary.                             The Government has moved

to dismiss the appeal based on Smith’s waiver of his right to

appeal.     In his pro se supplemental brief, Smith contends that

the     government        lacked         jurisdiction              to     prosecute            him     for

carjacking,        and    that        counsel         was    ineffective           for      failing     to

provide him with discovery materials and failing to disclose a

conflict of interest which resulted from the fact that Smith’s

attorney       had      previously          prosecuted            him   on     a       vehicle       theft

charge.    We dismiss in part and affirm in part.

               A   defendant          may    waive         the    right      to    appeal      if    that

waiver is knowing and intelligent.                           United States v. Poindexter,

492 F.3d 263, 270 (4th Cir. 2007).                               Generally, if the district

court fully questions a defendant regarding the waiver of his

right to appeal during the plea colloquy performed in accordance

with    Fed.       R.    Crim.     P.       11,       the    waiver       is      both      valid      and

enforceable.            See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68

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(4th Cir. 1991).       The question of whether a defendant validly

waived his right to appeal is a question of law that this court

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

Cir. 2005).

            Our review of the record leads us to conclude that

Smith knowingly and voluntarily waived the right to appeal his

sentence.     We therefore grant the Government’s motion to dismiss

in part and dismiss the appeal as to any sentencing issues.              On

the other hand, although Smith’s appeal waiver insulates his

sentence from appellate review, the waiver does not preclude our

consideration    of   the   remaining    claims   raised   by   Smith   and

counsel, and does not prohibit our review of Smith’s guilty plea

pursuant to Anders.      Consequently, we deny the motion to dismiss

in part.

            Because Smith did not move in the district court to

withdraw his guilty plea, the adequacy of the Rule 11 hearing is

reviewed for plain error.       See United States v. Martinez, 277

F.3d 517, 525 (4th Cir. 2002).          Our review of the transcript of

the plea hearing leads us to conclude that the district court

fully complied with Rule 11 in accepting Smith’s guilty plea.

The court ensured that Smith understood the charge against him

and the potential sentence he faced; that he entered his plea

knowingly and voluntarily; and that the plea was supported by an

independent factual basis.       See United States v. DeFusco, 949

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F.2d 114, 116, 119-20 (4th Cir. 1991).             Accordingly, we discern

no plain error in the district court’s acceptance of Smith’s

guilty plea.

            Smith’s    challenge     to    the    court’s     jurisdiction     to

prosecute him for carjacking is essentially a challenge to the

adequacy of the factual basis.             He contends that the facts did

not support a finding on all the elements of carjacking.                       We

disagree.    The agreed statement of facts shows that Smith and

five other individuals devised a plan to rob Jamal Nasir of

drugs and money.           They lured Nasir from his vehicle into a

residence   where     they   assaulted     and   restrained    him    with   duct

tape.   Several       of   the   individuals     then   returned     to   Nasir’s

vehicle where Willie Smith was waiting.             They then forced Willie

Smith from the vehicle into the residence and took the keys to

the vehicle from Willie Smith, assaulted him, and restrained him

with duct tape.        The individuals then forced Nasir and Willie

Smith into the trunk of the vehicle and drove the vehicle to a

remote location.       Nasir and Willie Smith died in the trunk of

Nasir’s vehicle due to lack of oxygen.                  These facts form a

sufficient factual basis for the crime of carjacking resulting

in death.

            Smith also contends that his attorney:              (1) convinced

him to plead guilty by informing him that he might otherwise be

sentenced to death; (2) failed to provide him with discovery

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materials; and (3) failed to disclose that he operated under a

conflict of interest because counsel had been the prosecutor on

Smith’s prior charge of vehicle theft.                    Claims of ineffective

assistance of counsel are generally not cognizable on direct

appeal.     Such claims are more appropriately raised in a motion

filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2010), unless

counsel’s    ineffectiveness          conclusively    appears       on     the   record.

See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.

2006); United States v. Richardson, 195 F.3d 192, 198 (4th Cir.

1999).      After    review    of     the   record,   we    find      no    conclusive

evidence that counsel rendered ineffective assistance, and we

accordingly decline to consider these claims on direct appeal.

We of course intimate no view as to the validity or lack of

validity in respect to any claim of ineffective assistance.

            In    accordance        with    Anders,   we      have       reviewed     the

remainder    of     the   record       in   this   case    and       have    found     no

meritorious issues not foreclosed by Smith’s appellate waiver.

We therefore affirm Smith’s conviction and dismiss the appeal of

his sentence.        We deny Smith’s motion to appoint new counsel.

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

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

further review.       If Smith 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

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

was served on Smith.          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.

                                                          DISMISSED IN PART;
                                                            AFFIRMED IN PART




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