                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4948


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

TERRENCE DOUGLAS PENNINGTON,

                      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-00234-BO-1)


Submitted:   April 19, 2012                 Decided:   April 24, 2012


Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam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


Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

           Terrence Douglas Pennington pled guilty, pursuant to a

plea    agreement,    to     possession   with    intent   to    distribute

marijuana and possession of a firearm in furtherance of drug

trafficking.      In accordance with Anders v. California, 386 U.S.

738 (1967), Pennington’s attorney has filed a brief certifying

that there are no meritorious issues for appeal but questioning

whether Pennington entered into a knowing and voluntary plea

agreement and guilty plea, whether it conclusively appears on

the record that trial counsel was ineffective, and whether the

sentencing court erred in attributing to Pennington marijuana

and    proceeds    from    2006.     Pennington   has   filed   a    pro   se

supplemental      brief.      The   Government    has   moved   to   dismiss

Pennington’s appeal based on his appellate waiver.                   For the

following reasons, we dismiss in part and affirm in part.

           Pursuant to a plea agreement, a defendant may waive

his appellate rights under 18 U.S.C. § 3742 (2006).                   United

States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                A valid

waiver will preclude appeal of a given issue if the issue is

within the scope of the waiver.           United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).            Whether a defendant validly

waived his right to appeal is a question of law that we review

de novo.   Id.



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            “The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the

right to appeal.”         Id. at 169.         This determination, often made

based on the sufficiency of the plea colloquy and whether the

district court questioned the defendant about the appeal waiver,

ultimately   turns       on    an   evaluation    of    the    totality      of    the

circumstances.       Id.       These circumstances include all of “the

particular     facts     and    circumstances      surrounding       [the]        case,

including    the    background,       experience,        and   conduct    of       the

accused.”    Id. (internal quotation marks omitted).

            Here,    a   review      of   the   record    indicates      that      the

district court fully complied with Fed. R. Crim. P. 11 when

accepting Pennington’s plea and specifically reviewed the terms

of his plea agreement with him, including his appellate waiver.

Given no indication in the record to the contrary, we find that

Pennington’s       waiver      of    appellate      rights      is    valid        and

enforceable.       Accordingly, we grant the Government’s motion to

dismiss Pennington’s appeal of any issues covered by the waiver.

This includes all sentencing issues.                   We find, however, that

Pennington’s appellate waiver does not prevent our review of his

ineffective assistance of counsel and prosecutorial misconduct

claims.     We therefore deny the Government’s motion to dismiss

Pennington’s appeal as to these claims.



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              We     affirm        the     judgment           as       to        the   ineffective

assistance      of       counsel        claims       raised       by       Pennington       and     his

counsel    because         ineffective       assistance            does         not    conclusively

appear on the record.                   See Massaro v. United States, 538 U.S.

1690, 1693-94 (2003); United States v. Richardson, 195 F.3d 192,

198    (4th   Cir.        1999)    (ineffective             assistance            claims    are     not

cognizable      on       direct     appeal       unless       the          record      conclusively

establishes ineffective assistance).                          To the extent Pennington

attempts       to        allege     prosecutorial              misconduct              related       to

sentencing, his claim is non-specific and not supported by the

record.

              In accordance with Anders, we have reviewed the record

in this case, mindful of the scope of the appellate waiver, and

have    found       no    meritorious        issues         for    appeal.             This    court

requires      that       counsel    inform       Pennington,               in    writing,     of    his

right to petition the Supreme Court of the United States for

further    review.          If     Pennington          requests            that    a   petition      be

filed,    but      counsel        believes       that       such       a    petition       would     be

frivolous,         counsel        may     move        for    leave          to     withdraw        from

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

was    served      on     Pennington.            We    dispense            with     oral    argument

because the facts and legal contentions are adequately presented




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in the materials before the court and argument would not aid the

decisional process.



                                              DISMISSED IN PART;
                                                AFFIRMED IN PART




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