                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4404


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ERIC WAYNE ZUSPAN,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:09-cr-00081-IMK-JSK-1)


Submitted:   January 31, 2011             Decided:   March 7, 2011


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Andrew R. Cogar, Assistant United
States Attorney, Clarksburg, West Virginia, Betsy C. Jividen,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Eric    Wayne    Zuspan     appeals        from    his    conviction       and

thirty-seven-month sentence entered pursuant to his guilty plea

to conspiracy to commit wire fraud, in violation of 18 U.S.C.

§ 371 (2006), and possession of a firearm and ammunition by a

prohibited person, in violation of 18 U.S.C. § 922(g) (2006).

Counsel has filed a brief pursuant to Anders v. California, 386

U.S.    738          (1967),   concluding      that       there     are    no    meritorious

grounds for appeal but questioning whether Zuspan knowingly and

voluntarily pleaded guilty.                 In what this court construes as his

pro    se    supplemental         brief,     Zuspan       asserts     that       he   received

ineffective assistance of counsel.                        The Government has filed a

motion      to       dismiss   the    appeal   on     the    basis    of     the      appellate

waiver contained in Zuspan’s plea agreement.                              Zuspan’s counsel

opposes this motion.

                 A    defendant      may   waive    the     right    to    appeal      if   that

waiver is knowing and intelligent.                    United States v. Poindexter,

492 F.3d 263, 270 (4th Cir. 2007).                         Our independent review of

the record supports the conclusion that Zuspan voluntarily and

knowingly waived his right to appeal.                         Thus, we conclude that

the waiver is valid and enforceable.

                 However,      even    a    valid    waiver        does    not     waive    all

appellate claims.              Specifically, a valid appeal waiver does not

preclude a challenge to a sentence on the ground that it exceeds

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the   statutory     maximum     or    is       based        on     a    constitutionally

impermissible factor such as race, arises from the denial of a

motion to withdraw a guilty plea based on ineffective assistance

of counsel, or relates to claims concerning a violation of the

Sixth Amendment right to counsel in proceedings following the

guilty plea.       United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th Cir.

1993).    The only claim raised by Zuspan that falls outside the

scope of his appellate waiver is his assertion that counsel was

ineffective.       In   addition,     we       are    charged      under      Anders   with

reviewing the record for unwaived error.                         Thus, we grant the

Government’s motion to dismiss in part and dismiss the claims

raised by counsel in his Anders brief.                       We deny the motion to

dismiss with regard to Zuspan’s ineffective assistance claim.

            Although Zuspan’s claim of ineffective assistance of

counsel is not barred by the terms of his appellate waiver, we

nevertheless    cannot    entertain        it.        Ineffective         assistance      of

counsel claims are generally not cognizable on direct appeal.

United    States   v.   King,   119    F.3d          290,    295       (4th   Cir.   1997).

Rather,   to   allow    for   adequate         development         of     the   record,   a

defendant must bring such a claim in a 28 U.S.C.A. § 2255 (West

Supp. 2010) motion.           See id.           An exception exists when the

record conclusively establishes ineffective assistance.                              United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                               The

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record    before    us    fails    to    conclusively    establish       ineffective

assistance.        Thus, Zuspan’s claim is not cognizable on direct

appeal.

            In accordance with Anders, we have reviewed the record

in this case and have found no unwaived and meritorious issues

for appeal.      We therefore dismiss the appeal in part and affirm

in part.     This court requires that counsel inform his client, in

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

United States for further review.              If the client 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 the client.                      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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