                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4220


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMARUS MARQUIS SUTTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00059-LHT-4)


Submitted:   May 26, 2010                 Decided:   June 23, 2010


Before MOTZ, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles R. Brewer, Asheville, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jamarus           Marquis     Sutton          appeals        his    guilty     plea,

pursuant to a plea agreement, for conspiracy to possess with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 846    (2006).         On    appeal,       Sutton       contends       that    the   district

court erred in sentencing Sutton without conducting a hearing or

inquiry into Sutton’s claims of innocence during the sentencing

hearing.    Additionally, Sutton contends that his trial attorney

was ineffective in failing to move to withdraw Sutton’s plea or

take any other action after Sutton’s claim of innocence during

sentencing.       We affirm.

            In its brief, the Government contends that the plea

waiver contained in Sutton’s plea agreement precludes Sutton’s

challenge    to    the        district       court’s      failure        to    inquire    as    to

Sutton’s    guilt.            Whether    a    defendant       effectively          waived      his

right to appeal pursuant to a plea bargain is an issue of law

that is reviewed de novo.                United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005).              Where the government seeks to enforce an

appeal    waiver     and       the    appellant        does    not       contend       that    the

government is in breach of its plea agreement, a waiver will be

enforced    if     the    record        shows       the    waiver        is    valid   and     the

challenged issue falls within the scope of the waiver.                                   Id.    An

appeal waiver is valid if it is “the result of a knowing and

intelligent      decision        to   forgo     the       right     to    appeal.”        United

                                                2
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)

(internal quotation marks and citations omitted).                              To decide

whether      a    defendant’s       waiver       results       from    a    knowing     and

intelligent       decision,     a   court        must   examine       “‘the    particular

facts   and      circumstances      surrounding         that    case,      including    the

background, experience and conduct of the accused.’”                                 United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992) (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).                         Generally, if the

district court fully questions a defendant at his Fed. R. Crim.

P. 11 proceeding regarding the waiver of his right to appeal,

the waiver is both valid and enforceable.                       See United States v.

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

does not preclude challenges to a sentence on the ground that it

exceeds the statutory maximum or is based on a constitutionally

impermissible factor like race, or claims concerning a violation

of the Sixth Amendment right to counsel in proceedings following

the guilty plea.        Id.     After reviewing the record, we find that

Sutton knowingly and voluntarily waived his appeal rights, and

this issue falls within the scope of the waiver.                            Accordingly,

this issue is barred by Sutton’s plea agreement.

              In his second claim, Sutton alleges that his attorney

was ineffective in failing to take any action after Sutton’s

claim   of       innocence    during    sentencing.             Because       this    claim



                                             3
concerns a violation of Sutton’s right to counsel, this issue is

not barred by the appeal waiver and may proceed.

               Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.                       See United States v. King,

119    F.3d    290,      295   (4th      Cir.     1997).         Rather,     to    allow   for

adequate development of the record, a defendant must ordinarily

bring    his    claim     in   a    28      U.S.C.A.       § 2255    (West      Supp.   2009)

motion.       See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th

Cir. 1994).         An exception to this general rule exists when the

record conclusively establishes ineffective assistance.                                 United

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

119 F.3d at 295.

               In   order      to     succeed       on     a     claim     of     ineffective

assistance, defendant must show that:                       (1) counsel’s performance

fell    below       an    objective         standard        of      reasonableness;        and

(2) counsel’s            deficient           performance             was        prejudicial.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984).                                   Under

the first prong of Strickland, a defendant must demonstrate that

counsel’s       performance           was       unreasonable         under        “prevailing

professional        norms.”         Id.      at     688.       We    “indulge       a   strong

presumption that counsel’s conduct falls within the wide range

of    reasonable      professional          assistance.”            Id.      Generally,     to

satisfy the second prong of Strickland, a defendant “must show

that there is a reasonable probability that, but for counsel’s

                                                4
unprofessional errors, the result of the proceeding would have

been different.”       Id. at 694.

            After review, we conclude that the record does not

conclusively    establish      that   Sutton’s       counsel    was   ineffective.

Accordingly, this issue is not cognizable on direct appeal, but

must be pursued, if at all, in an appropriate motion for post-

conviction relief.

            Therefore,    we    affirm       the   judgment     of    the   district

court.     We dispense with oral argument because the facts and

legal    contentions    are    adequately      expressed       in    the    materials

before   the   court    and    argument      would    not   aid     the    decisional

process.

                                                                             AFFIRMED




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