                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4856


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ANTHONY ANTONIO SHEPARD,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:07-cr-00201-D-1)


Submitted:    June 9, 2009                  Decided:   July 10, 2009


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam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


Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant.   Anne Margaret
Hayes,   Assistant  United States Attorney,  Raleigh,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 In this appeal filed pursuant to Anders v. California,

386     U.S.      738        (1967),     Anthony       Antonio      Shepard        appeals      his

conviction        and        264-month    sentence       he    received      after       pleading

guilty to distribution of more than five grams of cocaine base,

in    violation         of    21   U.S.C.    §     841(a)(1)(2006),          and    aiding      and

abetting, in violation of 18 U.S.C. § 2 (2006).                               Anders counsel

notes       no    meritorious          issues      for    appeal,      but     raises      as    a

potential issue the district court’s denial of a three-level

reduction        in     sentence       for   acceptance        of    responsibility.             In

response,         the        Government      has       filed   a     motion        to    dismiss,

asserting the waiver of appellate rights included in Shepard’s

plea agreement precludes appeal of his sentence.                               Shepard filed

a pro se supplemental brief, arguing his attorney provided him

ineffective assistance by failing to adequately counsel him as

to    the    possible          sentencing        consequences        arising       out    of    his

relevant conduct.              For the reasons set forth below, we affirm in

part and grant the Government’s motion to dismiss in part.

                 We first conclude that Shepard has waived his right to

appeal his sentence and its calculation.                            A defendant may, in a

valid plea agreement, waive his appellate rights under 18 U.S.C.

§ 3742 (2000).               United States v. Wiggins, 905 F.2d 51, 53 (4th

Cir. 1990).           We review the validity of an appellate waiver de

novo and will enforce the waiver if it is valid and the issue

                                                   2
appealed is within the scope thereof.                        United States v. Blick,

408 F.3d 162, 171 (4th Cir. 2005).                     An appeal waiver is valid if

the defendant knowingly and intelligently agreed to the waiver.

Id. at 169.        “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 [Fed.

R.   Crim.   P.]     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).       Ultimately,

however, the issue is “evaluated by reference to the totality of

the circumstances.”         United States v. General, 278 F.3d 389, 400

(4th Cir. 2002).

             The     appellate      waiver       set     forth   in     Shepard’s      plea

agreement provided that Shepard agreed:

       To waive knowingly and expressly the right to appeal
       of whatever sentence is imposed on any ground,
       including any appeal pursuant to 18 U.S.C. § 3742,
       reserving only the right to appeal from a sentence in
       excess of the advisory Guideline range that is
       established at sentencing based on the applicable drug
       weight and criminal history category, and further to
       waive all rights to contest the conviction or sentence
       in any post-conviction proceeding, including one
       pursuant   to   28   U.S.C.   § 2255,  excepting   the
       Defendant’s right to appeal based upon grounds of
       ineffective assistance of counsel.

             Our     review    of     the        record       reveals    that    Shepard

knowingly      and    voluntarily      waived          his    right     to   appeal     his


                                             3
sentence.     The waiver’s language is clear and unambiguous, and

the district court reviewed the terms of the waiver with Shepard

at the Fed. R. Crim. P. 11 hearing to ensure he understood it.

Accordingly, we conclude the waiver is valid and enforceable.

Because the sentencing issue raised on appeal falls within the

scope   of   the    waiver     that      Shepard    knowingly      and     voluntarily

accepted,    the    waiver   will      be    enforced     to    preclude    review   of

Shepard’s    sentence.         Accordingly,        we    grant    the    Government’s

motion to dismiss Shepard’s appeal to the extent it challenges

his sentence.

             Shepard    challenges          his    conviction      by    arguing     his

attorney     provided    him    ineffective         assistance      by     failing   to

adequately counsel him regarding sentencing consequences arising

out of his relevant conduct, which resulted in the denial of the

three-level        reduction        in      sentence        for     acceptance        of

responsibility.          Shepard         intimates       that     such     ineffective

assistance    undercuts      the      validity      of   his     plea.      Unless    an

attorney’s ineffectiveness is conclusively apparent on the face

of the record, ineffective assistance claims are not generally

addressed on direct appeal.                 United States v. James, 337 F.3d

387, 391 (4th Cir. 2003); United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999) (providing standard and noting that

ineffective    assistance      of     counsel      claims      generally    should   be



                                            4
raised by motion under 28 U.S.C. § 2255 (2000)).                             We find the

record in this case falls short of this exacting standard.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.         Accordingly,       we   grant    the    Government’s          motion   to

dismiss,    in     part,     and    dismiss     Shepard’s         challenge      to    his

sentence.        We   affirm     the    remainder      of   the    district      court’s

judgment.

            We require 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 filing 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




                                           5
