                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4706


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JERMAINE ANTONIO TILLMAN, a/k/a Main, a/k/a Maine,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:10-cr-00466-MBS-15)


Submitted:   April 25, 2012                 Decided:   May 22, 2012


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Robert L. Hallman, Jr., Columbia, South Carolina, for Appellant.
John David Rowell, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Jermaine Antonio Tillman pled guilty, pursuant to a

plea     agreement,         to    conspiracy         to     possess     with        intent    to

distribute five kilograms or more of cocaine, fifty grams or

more of cocaine base, and a quantity of marijuana, in violation

of 21 U.S.C. § 846 (2006).                  On appeal, Tillman asserts that the

district court erred in denying him a two-level acceptance of

responsibility adjustment, that trial counsel was ineffective in

failing to object to the use of drug quantities obtained during

the course of his cooperation with the Government, and that the

district court erred in imposing a $100,000 forfeiture judgment.

Relying    on    the   waiver         of    appellate      rights      in    Tillman’s       plea

agreement,       the   Government           twice     has    moved      to    dismiss        this

appeal.    We dismiss in part and affirm in part.

               Pursuant to a plea agreement, a defendant may waive

his appellate rights.                United States v. Manigan, 592 F.3d 621,

627 (4th Cir. 2010).                 A waiver will preclude an appeal of “a

specific issue if . . . the waiver is valid and . . . the issue

being    appealed      is    within        the   scope      of   the    waiver.”        United

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

question    of    whether        a    defendant      validly      waived      his    right    to

appeal is a question of law that this court reviews de novo.

Manigan, 592 F.3d at 626.



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             “An    appellate     waiver    is   valid       if     the   defendant

knowingly     and    intelligently     agreed    to    [waive       the   right    to

appeal].”     Id. at 627.       To determine whether a waiver is knowing

and intelligent, we examine “the totality of the circumstances.”

Id. (internal quotation marks omitted).               “An important factor in

such an evaluation is whether the district court sufficiently

explained the waiver to the defendant during the Federal Rule of

Criminal Procedure 11 plea colloquy.”             Id.; see United States v.

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

             Tillman does not challenge the validity of the waiver,

but he alleges that the Government breached the terms of the

plea agreement and that the waiver may not be enforced.                             We

disagree.

             We     construe    plea    agreements      in        accordance      with

principles of contract law “to ensure that each party receives

the benefit of the bargain.”           United States v. Jordan, 509 F.3d

191, 195 (4th Cir. 2007).          Accordingly, “we must try to discern

the intent of the parties as expressed in the plain language of

the agreement when viewed as a whole.”                United States v. Perry,

640   F.3d   805,     811   (8th Cir. 2011)      (internal        quotation    marks

omitted).     Because Tillman failed to argue in the district court

that the Government had breached the plea agreement, we review

the claim for plain error.             See Puckett v. United States, 556

U.S. 129, 133-34 (2009).         Thus, Tillman cannot prevail unless he

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establishes      that       the    district     court          committed     an   error,      the

error was plain, and the error affected his substantial rights.

United    States       v.   Massenburg,        564    F.3d       337,    342-43     (4th     Cir.

2009).    Even if such error is found, it is within this court’s

discretion to notice the error, and we do so “only if the error

seriously affects the fairness, integrity or public reputation

of judicial proceedings.”               Id. at 343 (internal quotation marks

omitted).

               Here,    the       Government       agreed       that    it   would    not     use

against Tillman any self-incriminating information he disclosed

during    the     course      of     his     cooperation.              However,      the     plea

agreement released the Government from its obligations in the

event of a breach.                Additionally, a parallel provision in the

agreement      specifically          provided      that        the    Government’s     use     of

self-incriminating information will not be restricted “in the

event    the    Defendant         breaches     any        of    the    terms   of    the     Plea

Agreement.”        (J.A. 102) * (emphasis added).                         Accordingly, the

Government       did        not     breach     the        plea        agreement      when,     at

sentencing,       it        relied     on     Tillman’s           proffer      because       the

Government      was     permitted      to     do     so    after       Tillman    refused      to

testify at his co-defendant’s trial, in violation of the plea

agreement.       Because the waiver is valid and precludes Tillman’s

     *
         “J.A.” refers to the joint appendix filed by the parties.



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challenge   to    the     absence     of   an   acceptance        of   responsibility

adjustment and the imposition of the forfeiture judgment, we

grant in part the Government’s motions to dismiss and dismiss

this portion of the appeal.

            Although Tillman may not challenge the reasonableness

of his sentence, the appellate waiver does not bar his claim

that trial counsel was ineffective.                    See Johnson, 410 F.3d at

151 (stating ineffective assistance claims following entry of

guilty    plea     cannot       be    waived);        see      also    Strickland   v.

Washington, 466 U.S. 668, 688, 694 (1984) (providing standard).

Ineffective      assistance      of    counsel        claims    are    not   generally

cognizable on appeal unless ineffective assistance “conclusively

appears from the record.”             United States v. Baldovinos, 434 F.3d

233, 239 (4th Cir. 2006).              Because ineffective assistance does

not conclusively appear on this record, we decline to review his

claim in this appeal.           Tillman must bring his claim — if at all

— in a 28 U.S.C.A. § 2255 (West Supp. 2011) motion in order to

allow for adequate development of the record.                     See United States

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

Accordingly, we deny in part the Government’s motions to dismiss

and affirm the remainder of the judgment.

            We dispense with oral argument because the facts and

legal    contentions      are    adequately      presented        in   the   materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                       DISMISSED IN PART;
                                                         AFFIRMED IN PART




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