                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4421


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY LEE SCAIFE, a/k/a Timothy John Scaife,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00376-REP-1)


Submitted:   December 7, 2010             Decided:   January 5, 2011


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Mark Diamond, Richmond, Virginia, for Appellant. Richard Daniel
Cooke, Norval George Metcalf, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Timothy       Lee   Scaife        pled       guilty       to     one       count    of

distribution       of    cocaine      base,       in    violation          of    21     U.S.C.A.

§ 841(a)(1),       (b)(1)(B)(iii)          (West       1999    &     Supp.      2010).         The

district    court       sentenced     Scaife       to    235       months’      imprisonment.

Scaife asserts four issues on appeal: (1) the Fair Sentencing

Act   of    2010     should     be     applied          retroactively            to     Scaife’s

sentence;      (2)       Scaife’s          sentence           is     substantively             and

procedurally         erroneous;        (3)         the        appellate              waiver     is

unenforceable       because     his    sentence          resulted      from          ineffective

counsel; and (4) the appellate waiver is unenforceable because

Scaife was not aware of the sentence that would be imposed.                                    The

Government has moved to dismiss Scaife’s appeal as barred by the

appellate waiver clause in his plea agreement.

            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 issues appealed are 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

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determine     whether          a   waiver     is       knowing        and    intelligent,         this

court examines the background, experience, and conduct of the

defendant.         United States v. General, 278 F.3d 389, 400 (4th

Cir. 2002).         Generally, if the district court fully questions a

defendant regarding the waiver during the Fed. R. Crim. P. 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.”                        General, 278 F.3d at 400.                   “An

appeal   waiver         is     not    knowingly         or     voluntarily          made    if     the

district    court        fails       to    specifically           question         the    defendant

concerning     the       waiver        provision         .    .   .    during       the    Rule     11

colloquy and the record indicates that the defendant did not

otherwise      understand            the    full       significance           of    the    waiver.”

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)

(internal quotation marks omitted).

              Our review of the record leads us to conclude that

Scaife knowingly and voluntarily waived the right to appeal his

conviction and sentence.                    Scaife’s sentencing challenges fall

within the scope of the waiver, and we grant the motion to

dismiss and dismiss the appeal as to those claims.

              We        conclude,          however,           that     Scaife’s           claim     of

ineffective assistance of counsel at sentencing is not within

the   scope        of    the       waiver.         See        Blick,        408    F.3d    at     171.

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Therefore, we deny the motion to dismiss to the extent Scaife

asserts   this    claim   on    appeal.       However,       the   claim     is   not

cognizable on direct appeal, as ineffective assistance does not

conclusively     appear   on    the     record.        See    United    States    v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).                     Scaife is free

to assert these claims in a future 28 U.S.C.A. § 2255 (West

Supp. 2010) motion if he so chooses.                    See United States v.

Baptiste, 596 F.3d 214, 216-17 n.1 (4th Cir. 2010).

           We    therefore     affirm    Scaife’s   conviction         and   dismiss

the appeal to the extent Scaife seeks to challenge his sentence.

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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