                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4428


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ATUM N. MAMBE, a/k/a Michael Mambe, a/k/a Maxwell Tuum,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:07-cr-00164-WMN-1)


Submitted:    January 30, 2009             Decided:   February 17, 2009


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


David W. Lease, SMITH, LEASE & GOLDSTEIN, LLC, Rockville,
Maryland, for Appellant.   Kwame Jangha Manley, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Atum    N.    Mambe    appeals      his      conviction      and       sentence

following a guilty plea to one count of mail fraud in violation

of 18 U.S.C. § 1341 (2006).                Counsel has filed a brief pursuant

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

are no meritorious issues for appeal, but questioning whether:

(1) the district court failed to comply with Fed. R. Crim. P.

11   in   accepting         Mambe’s     guilty   plea;      (2)   the      district     court

erred     in   applying       a   two    point     enhancement        for       the    use    of

“sophisticated         means”     pursuant       to   U.S.    Sentencing         Guidelines

Manual    §    2B1.1(b)(9)        (2007);    (3)      Mambe’s     trial         counsel      was

ineffective       in    recommending         that      he     enter     into      the     plea

agreement; and (4) the court erred in determining the amount of

restitution      owed.         Additionally,          Mambe    has    filed       a    pro    se

supplemental brief in which he essentially restates the claims

raised in his counseled brief and also questions whether his

sentence is too harsh.               In response, the Government has filed a

motion to dismiss based on the waiver of appellate rights in

Mambe’s plea agreement.

               This    court      reviews    the      validity        of    a    waiver       of

appellate rights de novo, United States v. Brown, 232 F.3d 399,

402-03 (4th Cir. 2000), and will apply the waiver if it is valid

and the issue being appealed is covered by the waiver.                                  United

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).                             A waiver is

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valid if the defendant’s agreement to the waiver was knowing and

voluntary.        United States v. Marin, 961 F.2d 493, 496 (4th Cir.

1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.

1991).       Generally,        if    a    district     court       fully    questions   a

defendant regarding his waiver of appellate rights during the

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

936 F.2d at 167-68.

             We have reviewed the record in this case and determine

that Mambe’s plea was knowing and voluntary and that his waiver

was valid.        The express terms of the waiver, however, preclude

an appeal only as to Mambe’s sentence resulting from an adjusted

base offense level of 22.                Because the district court determined

that Mambe’s offense level was 22, his appeal of his sentence

is barred by his waiver of appellate rights.                               Therefore, we

dismiss that portion of his appeal.

             Mambe also claims his trial counsel was ineffective.

Mambe’s claim of ineffective assistance is not barred by his

plea waiver.        Nevertheless, we decline to address it on direct

appeal.      Unless      trial      counsel’s     ineffectiveness          “conclusively

appears” on the record, it is not cognizable on direct appeal,

but   must   instead      be     raised     in    a   post-conviction         proceeding

pursuant     to    28    U.S.C.A.        § 2255    (West     2000    &     Supp.   2008).

United    States    v.    James,      337   F.3d      387,   391    (4th    Cir.   2003).

Because Mambe’s counsel’s ineffectiveness is not apparent on the

                                             3
record, Mambe must pursue this issue in an appropriate post-

conviction proceeding.        Accordingly, we deny the Government’s

motion with respect to Mambe’s ineffective assistance claims and

affirm his conviction.

            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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