                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4685


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KSHAWN MALIK HILL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:11-cr-00049-HEH-1)


Submitted:   February 23, 2012            Decided:   March 12, 2012


Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK,   P.C.,  Virginia  Beach,   Virginia,  for  Appellant.
Jamie L. Mickelson, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Kshawn    Malik         Hill       pled       guilty,   pursuant     to    a    plea

agreement,      to     one    count             of    carjacking      and   two    counts       of

possession of a firearm in furtherance of a crime of violence.

He   was     sentenced       to       a    term       of     520   months   in    prison.      In

accordance     with     Anders            v.     California,       386   U.S.     738   (1967),

Hill’s attorney has filed a brief certifying that there are no

meritorious     issues       for          appeal      but    questioning    whether      Hill’s

guilty plea was knowing and voluntary and whether counsel was

ineffective in advising Hill to plead guilty.                               The Government

moved to dismiss Hill’s appeal based on his appellate waiver.

Hill   has    not    filed        a       pro    se       supplemental   brief.         For   the

following reasons, we dismiss in part and affirm in part.

              Pursuant to a plea agreement, a defendant may waive

his appellate rights under 18 U.S.C. § 3742 (2006).                                      United

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

waiver will preclude appeal of a given issue if the issue is

within the scope of the waiver.                             United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).                              Whether a defendant validly

waived his right to appeal is a question of law that we review

de novo.      Id.

              “The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the

right to appeal.”            Id. at 169.                  This determination, often made

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based on the sufficiency of the plea colloquy and whether the

district court questioned the defendant about the appeal waiver,

ultimately     turns    on     an    evaluation         of   the     totality      of    the

circumstances.         Id.     These circumstances include all of “the

particular     facts     and    circumstances           surrounding        [the]        case,

including     the   background,         experience,            and    conduct    of      the

accused.”     Id. (internal quotation marks omitted).

            Here,   a    review       of     the      record    indicates       that     the

district court fully complied with Fed. R. Crim. P. 11 when

accepting Hill’s plea and specifically reviewed the terms of his

plea agreement with him, including his appellate waiver.                              Given

no indication in the record to the contrary, we find that Hill’s

waiver   of     appellate           rights       is     valid        and   enforceable.

Accordingly, we grant the Government’s motion to dismiss Hill’s

appeal of any issues covered by the waiver.

            We find, however, that Hill’s appellate waiver does

not prevent our review of Hill’s claim of ineffective assistance

of counsel regarding counsel’s advice to plead guilty.                          A waiver

of appeal rights will not bar appellate review of such a claim

if it contains a “colorable claim” that the plea agreement “is

tainted by constitutional error,” such as involuntariness or the

lack of the effective assistance of counsel.                         See, e.g., United

States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994)

(regarding motion to withdraw guilty plea).                      Because Hill raises

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a claim that his attorney’s ineffectiveness rendered his plea

involuntary, we deny the Government’s motion to dismiss Hill’s

appeal as to this claim.

           We     affirm      the    judgment       as     to     the    ineffective

assistance of counsel claim because ineffective assistance does

not conclusively appear on the record.                    See Massaro v. United

States,   538    U.S.      1690,     1693-94    (2003);         United       States   v.

Richardson,     195    F.3d   192,    198    (4th     Cir.      1999)    (ineffective

assistance claims are not cognizable on direct appeal unless the

record conclusively establishes ineffective assistance).

           In accordance with Anders, we have reviewed the record

in this case, mindful of the scope of the appellate waiver, and

have   found    no    meritorious     issues    for      appeal.        We    therefore

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

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

Supreme Court of the United States for further review.                          If Hill

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, counsel may move for leave

to withdraw from representation.               Counsel’s motion must state

that a copy thereof was served on Hill.                   We dispense with oral

argument because the facts and legal contentions are adequately




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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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