                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4271


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERIC MARTIN PEPKE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:15-cr-00319-FL-1)


Submitted:   October 31, 2016             Decided:   November 7, 2016


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


Affirmed in part and dismissed in part by unpublished per curiam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


Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    Jennifer P. May-Parker, Assistant United States
Attorney, Kristine L. Fritz, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Eric Martin Pepke pled guilty, in accordance with a written

plea agreement, to receipt of child pornography, in violation of

18    U.S.C.    §     2252(a)(2),     (b)(1)     (2012).      The    district      court

sentenced Pepke to 97 months’ imprisonment, to be followed by

lifetime supervised release.            Pepke timely appealed.

       Pepke’s attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), finding no meritorious grounds

for    appeal,        but    questioning        whether    Pepke’s    sentence      was

reasonable.         Pepke filed a pro se supplemental brief, with a

supplement.         The Government has moved to dismiss the appeal on

the basis of Pepke’s waiver in his plea agreement of the right

to appeal his sentence.             We affirm in part and dismiss in part.

       We review de novo the validity of an appeal waiver.                      United

States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).                               “We

generally will enforce a waiver . . . if the record establishes

that the waiver is valid and that the issue being appealed is

within the scope of the waiver.”                  United States v. Thornsbury,

670   F.3d     532,    537   (4th    Cir.   2012)    (internal      quotation      marks

omitted).       A defendant’s waiver is valid if he agreed to it

“knowingly and intelligently.”                  United States v. Manigan, 592

F.3d 621, 627 (4th Cir. 2010).

       Our review of the record leads us to conclude that Pepke

knowingly      and     voluntarily      waived      the    right     to   appeal    his

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sentence,     except    for   claims       of        ineffective     assistance   or

prosecutorial misconduct not known to Pepke at the time of his

guilty plea. *      We therefore grant the Government’s motion to

dismiss   and    dismiss   the   portion        of    the   appeal   pertaining   to

Pepke’s sentence.       We note, however, that Pepke’s waiver of his

right to appeal his sentence does not preclude our review of

Pepke’s conviction or his challenges to his sentence based on

ineffective assistance or prosecutorial misconduct.

     In his pro se supplemental brief, Pepke asserts that the

images to which he pled guilty do not depict child pornography

and that the images were “intrastate.”                  This claim is belied by

the record.

     Pepke argues that the seizure of his files violates the

Fourth Amendment because a detective accessed those files before

obtaining a search warrant.            This antecedent nonjurisdictional

allegation is waived by Pepke’s valid guilty plea.                       Tollett v.

Henderson, 411 U.S. 258, 267 (1973).

     Next,      Pepke   claims     that         the     prosecutor     made   false

statements at the arraignment and at the sentencing hearing.                      To

establish prosecutorial misconduct, Pepke must demonstrate that

the prosecutor’s conduct was improper and that it prejudicially



     * Accordingly, we reject Pepke’s pro se claim that he did
not knowingly and voluntarily waive his right to appeal.



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affected his substantial rights.                         United States v. Caro, 597

F.3d 608, 624-25 (4th Cir. 2010); see also United States v.

Armstrong,    517       U.S.   456,      464       (1996)      (noting        presumption    of

regularity accorded prosecutorial decisions).                              Because Pepke did

not raise these claims in the district court, our review is for

plain error.        United States v. Alerre, 430 F.3d 681, 689 (4th

Cir. 2005).        We conclude that Pepke’s conclusory claims, which

fail to specify the substance of the prosecutor’s purportedly

false statements, fail to establish prosecutorial misconduct.

     Finally,        Pepke     asserts         that       he    was        denied    effective

assistance of counsel because his attorney did not contact him a

week after sentencing, as promised, did not give him adequate

time to review “relevant documents,” and told him that he would

receive five years’ supervised release when he actually received

lifetime     supervision.           Unless          an    attorney’s          ineffectiveness

conclusively       appears     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).

Instead,   such      claims     should         be    raised      in       a   motion     brought

pursuant     to    28    U.S.C.     §    2255        (2012),         in    order    to   permit

sufficient        development       of    the        record.              United    States   v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).                                   Because the

record does not conclusively establish ineffective assistance of



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counsel, we conclude that these claims should be raised, if at

all, in a § 2255 motion.

      Pursuant to Anders, we have reviewed the entire record for

meritorious, nonwaived issues and have found none.            We therefore

affirm in part and dismiss in part.            This court requires that

counsel inform Pepke, in writing, of his right to petition the

Supreme Court of the United State for further review.              If Pepke

requests that such a petition be filed, but counsel believes

that the 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 of the motion was served on Pepke.

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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