                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5092


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CONRAD WAYNE DICKERSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:05-cr-00131-BO-1)


Submitted:   January 14, 2011             Decided:   February 11, 2011


Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Conrad    Wayne    Dickerson         pled    guilty,     pursuant         to    a

written plea agreement, to possession with intent to distribute

a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1)

(2006).        He was sentenced to 130 months’ imprisonment.                              This

appeal timely followed.

               Dickerson’s attorney first submitted a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that, in

his   view,     there    were    no   meritorious          grounds    for     appeal,     but

questioning       whether       counsel    was       ineffective       for    failing         to

object    to     the     relevant     conduct        determination          made    by    the

probation officer and adopted by the district court.                                 In the

course    of    our     Anders    review,      we    identified       two    nonfrivolous

issues — (1) whether the district court committed plain error in

conducting      Dickerson’s       Fed.    R.       Crim.   P.   11   hearing;       and   (2)

whether the district court committed procedural error in failing

to explain the reasons for the 130-month sentence it imposed —

and   directed          the    parties      to       submit     supplemental          briefs

addressing those issues.              Briefing is now complete, and this

case is ripe for disposition.

               We first turn to the ineffective assistance of counsel

argument raised in counsel’s Anders brief.                      Unless an attorney’s

ineffectiveness         is    conclusively         apparent     on    the    face    of    the

record,       ineffective        assistance          claims     are     not        generally

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addressed on direct appeal.               United States v. Benton, 523 F.3d

424, 435 (4th Cir. 2008); United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999) (providing standard and noting that

ineffective       assistance     of     counsel   claims    generally     should    be

raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2010)).

Because     we    find    no    conclusive     evidence    on    the   record    that

counsel rendered ineffective assistance, we decline to consider

this claim on direct appeal.

             We next consider the validity of Dickerson’s guilty

plea.       Prior to accepting a guilty plea, a trial court must

conduct a plea colloquy in which it informs the defendant of,

and determines that the defendant comprehends, the nature of the

charge to which he is pleading guilty, any mandatory minimum

penalty, the maximum possible penalty he faces, and the rights

he relinquishes by pleading guilty.                     Fed. R. Crim. P. 11(b);

United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

             There       were   several     omissions      in    Dickerson’s     plea

colloquy.        First, Dickerson was not advised that his statements

at the hearing could be used in a prosecution for perjury, as

required by Fed. R. Crim. P. 11(b)(1)(A).                       The district court

did   not    particularize        the    nature    of    the    offense   to    which

Dickerson was pleading guilty, as required by Fed. R. Crim. P.

11(b)(1)(G).         Further,     the    district   court       made   only    cursory

mention of Dickerson’s appellate waiver, thus failing to discuss

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the particular terms of the waiver and to question Dickerson to

ensure his understanding of those terms.                         See Fed. R. Crim. P.

11(b)(1)(N).         The district court also failed to inform Dickerson

that it would consult the advisory Sentencing Guidelines and the

statutory sentencing factors in determining his sentence, and

that    it     had    the        authority       to       vary   from     the     Sentencing

Guidelines.          Id.    at    (b)(1)(M).          Finally,      the    district       court

neglected      to    inform      Dickerson       of    its    obligation     to    impose       a

special assessment.             Id. at (b)(1)(L).

               Because Dickerson did not move to withdraw his guilty

plea or otherwise object to these omissions, this court’s review

is for plain error.              See United States v. Vonn, 535 U.S. 55, 59

(2002); United States v. Massenburg, 564 F.3d 337, 342 (4th Cir.

2009)    (stating         standard       of    review      for   unpreserved           Rule   11

error).      To establish plain error, Dickerson “must show:                            (1) an

error    was    made;      (2)    the    error       is    plain;   and    (3)    the     error

affects substantial rights.”                    Massenburg, 564 F.3d at 342-43.

To demonstrate impact on his substantial rights, Dickerson must

show    that,       but    for     the        Rule    11     errors,      individually         or

collectively, he would not have pled guilty.                            See United States

v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002).                              Even if such

error is found, “[t]he decision to correct the error lies within

our    discretion,        and    we   exercise        that    discretion     only       if    the

error     seriously        affects       the     fairness,       integrity        or     public

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reputation of judicial proceedings.”                         Massenburg, 564 F.3d at

343 (internal quotation marks omitted).

            Although      he     identifies         many      of    the    aforementioned

omissions, Dickerson’s primary contention appears to be that he

would    not    have    pled     guilty       had      he    known    the       court     would

determine,      at     sentencing,        that         his    offense       involved       the

distribution     of    seven     grams    of      crack      cocaine      (as    opposed    to

powder    cocaine).       We    reject     this        argument      as   it    erroneously

conflates the guilty plea and sentencing proceedings, which are

distinct.      The voluntariness of a defendant’s decision to plead

guilty cannot turn on the court’s sentencing determinations.                                We

further conclude        there    is     nothing        in    the    record      to   indicate

that, but for the district court’s omissions in the Rule 11

hearing, Dickerson would not have pled guilty.                             Dickerson thus

fails to satisfy the challenging burden of establishing plain

error.      See Puckett v. United States, 129 S. Ct. 1423, 1429

(2009).    Accordingly, we affirm Dickerson’s conviction.

            Finally,      we     turn    to       Dickerson’s        challenge       to    the

procedural reasonableness of his sentence.                          In its supplemental

brief,    the     Government       moves          to    dismiss       this       aspect     of

Dickerson’s      appeal     as     precluded            by    the     appellate         waiver

contained in Dickerson’s plea agreement.                           For the reasons that

follow, we grant the Government’s motion and dismiss the appeal

as to this issue.

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               A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006).                          United States v.

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

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                             This court reviews

the validity of an appellate waiver de novo, and will enforce

the waiver if it is valid and the issue appealed is within the

scope thereof.         United States v. Blick, 408 F.3d 162, 168 (4th

Cir. 2005).

               An appeal waiver is valid if the defendant knowingly

and    intelligently     agreed    to      the        waiver.         Id.    at    169.     To

determine      whether   a   waiver     is       knowing      and     intelligent,         this

court examines the background, experience, and conduct of the

defendant.       United States v. Broughton-Jones, 71 F.3d 1143, 1146

(4th    Cir.    1995).       Generally,          if     the   district        court       fully

questions a defendant regarding the waiver during the Rule 11

plea colloquy, the waiver is both valid and enforceable.                              United

States    v.    Wessells,    936   F.2d          165,    167-68       (4th    Cir.    1991).

Ultimately, however, the issue is “evaluated by reference to the

totality of the circumstances.”                   United States v. General, 278

F.3d 389, 400 (4th Cir. 2002).

               The primary issue in this case is whether the waiver

is    knowing    and   voluntary      in     light       of     the    district       court’s

failure to meaningfully discuss it on the record.                                 Dickerson’s

plea agreement contained a broad waiver-of-rights provision in

                                             6
which Dickerson waived his right “to appeal whatever sentence is

imposed,”          so     long   as    the    sentence       was    within       the        advisory

Guidelines range.                This clear and unambiguous waiver was set

forth    in        Dickerson’s        plea    agreement,         which    Dickerson          signed.

Dickerson testified at his Rule 11 hearing that he had read the

plea agreement and discussed it with his lawyer.                                Dickerson, who

was then twenty years old, had completed the tenth grade and was

literate in English; further, there were no issues as to his

competency.              Finally,     although       the    court    did    not       detail      the

terms        of     the     waiver     or     question       Dickerson          to     ensure     he

understood          those    terms,     it     did    inform      Dickerson          that    he   had

waived his right to appeal.

                  We     recognize     that    the     sufficiency         of    the        district

court’s       explanation        of    a     waiver    is    an    “important         factor”     in

determining whether the waiver was knowingly and intelligently

accepted, see Manigan, 592 F.3d at 627, and that there was no

substantive explanation here.                   However, in light of the totality

of     the        circumstances,        we    conclude       Dickerson          knowingly         and

intelligently agreed to the appellate waiver.                              See General, 278

F.3d    at        400-01.        As    the     waiver       is    valid    and        Dickerson’s

challenge           to     the   reasonableness             of     his     within-Guidelines

sentence falls soundly within the scope of the waiver, we will

enforce the waiver to grant the Government’s motion to dismiss.

See Blick, 408 F.3d at 169.

                                                 7
            For    these    reasons,      we    affirm    the    district     court’s

judgment as to Dickerson’s conviction, grant the Government’s

motion to dismiss as to Dickerson’s appeal of his sentence, and

dismiss that aspect of this appeal.                 In accordance with Anders,

we   have   reviewed      the    record     and    find   no    other      meritorious

issues.     This court requires that counsel inform Dickerson, in

writing,    of    the    right   to   petition     the    Supreme     Court    of   the

United States for further review.                 If Dickerson 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 representation.                    Counsel’s motion must

state that a copy thereof was served on Dickerson.

            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.

                                                                 AFFIRMED IN PART;
                                                                 DISMISSED IN PART




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