                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 05-4169



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


COLIN F. GORDON, a/k/a Big Daddy, a/k/a Christopher A. Donald,
a/k/a Daddy,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. James H. Michael, Jr.,
Senior District Judge. (CR-04-23)


Submitted:   June 13, 2008               Decided:   September 3, 2008


Before TRAXLER, KING, and GREGORY, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Neal L. Walters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, APPELLATE
LITIGATION CLINIC, Charlottesville, Virginia; Jeremy N. Snyder,
Taylor J. Phillips, Third Year Law Students, Charlottesville,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Nancy S. Healey, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Colin F. Gordon pled guilty, without benefit of a plea

agreement, to illegal reentry to the United States after having

been deported and removed, in violation of 8 U.S.C. § 1326(a),

(b)(2) (2000).      Gordon thereafter pled guilty, pursuant to a

written plea agreement, to conspiracy to possess with intent to

distribute fifty grams or more of crack cocaine, in violation of 21

U.S.C. § 846 (2000); and use or possession of one or more firearms

during and in relation to a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1) (2000).      Gordon was sentenced to a total of

480   months’   imprisonment,1   and   he   timely   appealed.   For   the

following reasons, we affirm.

           On appeal, Gordon’s counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating there are no



      1
      The district court’s written judgment reflects a 420-month
term on the § 846 count and a 240-month term on the § 1326 count,
to run concurrently, as well as a sixty-month term on the § 924
count, to run consecutively. According to the sentencing hearing
transcript, the district court announced a 240-month term for the
§ 846 count, to run concurrently with the 240-month term for the
§ 1326 count, as well as the consecutive sixty-month sentence on
the § 924 count.     However, the sentencing transcript clearly
indicates the district court’s intention to sentence Gordon to a
total of 480 months’ imprisonment, and the court’s Statement of
Reasons adopts the presentence report without change, including its
recommendation of 360 months to life imprisonment on the § 846
count. It therefore appears beyond dispute that the court’s oral
pronouncement of a 240-month sentence on the § 846 count was an
inadvertent slip-of-the-tongue.    Accordingly, because an actual
ambiguity does not exist concerning the imposition of sentence, the
rule of leniety is inapplicable. See United States v. Fisher, 58
F.3d 96, 99 (4th Cir. 1995).

                                   -2-
meritorious issues for appeal. Counsel suggests, however, that the

district   court   may   have   erred   in   denying   Gordon’s   motion   to

suppress and in ordering Gordon’s sentence.               Gordon advanced

similar arguments in his pro se supplemental brief; in addition, he

alleged he received ineffective assistance of counsel.               In its

letter notifying this court that it would decline to file a brief,

the government contended that both the suppression and sentencing

issues were foreclosed by the plea agreement corresponding to

Gordon’s second guilty plea.

           Gordon’s suppression motion applied to the §§ 846 and 924

counts, to which he pled guilty with a waiver of appellate rights.

Rule 11(a)(2) of the Federal Rules of Criminal Procedure requires

the consent of the court and the government in order for a

defendant to enter a conditional plea of guilty and reserve his

right to appeal an adverse determination of a pretrial motion.             If

the requirements of Rule 11(a)(2) are not met, the defendant is

foreclosed from appealing non-jurisdictional defects, including the

denial of a motion to suppress.           Tollett v. Henderson, 411 U.S.

258, 267 (1973); United States v. Willis, 992 F.2d 489, 490 (4th

Cir. 1993).   Because Gordon has not met the requirements for Rule

11(a)(2), we find that Gordon is foreclosed from appealing the

denial of his motion to suppress.

           Gordon also waived his right to appeal sentencing issues

in the plea agreement.     At Gordon’s second guilty plea hearing, to


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which    the    plea   agreement    is    applicable,     the   district   court

explicitly noted the agreement’s appellate waiver provisions and

Gordon reaffirmed his agreement to them. We conclude the waiver is

valid and enforceable and that the Sixth Amendment issues raised on

appeal fall within the scope of the waiver.               See United States v.

Blick, 408 F.3d 162, 169-73 (4th Cir. 2005) (holding that waiver of

right to appeal in plea agreement entered into before United States

v. Booker, 543 U.S. 220 (2005), was not invalidated by change in

law effected by that case and that Booker error fell within scope

of waiver).

               Gordon’s claims regarding the § 1326 offense are not

encompassed by the appellate waiver.                Counsel asserted for the

first time on appeal that the criminal judgment for Gordon’s

illegal reentry conviction should be vacated because the Government

violated the Vienna Convention by allegedly not affording Gordon,

a Jamaican national, the opportunity to consult with the Jamaican

Consulate following his arrest.2               We appointed amicus counsel on

Gordon’s behalf and directed the parties to submit supplemental

briefs    addressing      whether        the     Vienna   Convention   creates

individually enforceable rights cognizable on plain error review.



     2
      Under the Vienna Convention, when a foreign national has been
arrested, imprisoned, or taken into custody and he so requests, the
arresting government shall inform his local consular post of his
arrest, and he shall be permitted to communicate with the consular
officials. Vienna Convention on Consular Relations, Apr. 24, 1963,
art. 36, 21 U.S.T. 77, 101.

                                         -4-
           Because Gordon did not raise the Vienna Convention issue

in   district   court,   it   is   reviewed    for      plain    error.     United

States v. Olano, 507 U.S. 725, 732-34 (1993).                    Under the plain

error standard, Gordon must show: (1) there was error; (2) the

error was plain; and (3) the error affected his substantial rights.

Id. If these conditions are satisfied, this court may exercise its

discretion    to   notice   the    error    only   if   the     error   “seriously

affect[s] the fairness, integrity, or public reputation of judicial

proceedings.”      Id. at 736 (internal quotation marks omitted).

After reviewing the available published caselaw on the issue and

the applicable district court materials pertaining to Gordon’s

illegal reentry conviction and sentence,3 we find that Gordon fails

to satisfy this standard.

             Finally, with respect to Gordon’s pro se ineffective

assistance of counsel claim, such claims are not cognizable on

direct    appeal    unless    the     record       conclusively         establishes


      3
      Although Gordon’s waiver of appellate rights did not
encompass the sentence corresponding to his illegal reentry
conviction, Gordon fails to demonstrate the district court abused
its discretion. See Gall v. United States, 128 S. Ct. 586, 597
(2007). Gordon’s 240-month sentence for this offense was imposed
concurrent to the 420-month sentence for the § 846 offense.
Therefore, Gordon’s substantial rights were not affected by the
240-month concurrent term. See United States v. Ellis, 326 F.3d
493, 599-600 (4th Cir. 2003) (holding that sentence exceeding
statutory maximum by twenty years did not affect substantial rights
because defendant received equal or longer concurrent sentences on
other counts); United States v. Burns, 298 F.3d 523, 544-45 (6th
Cir. 2002) (holding that sentencing error did not affect
defendants’ substantial rights because error did not result in
longer term of imprisonment).

                                      -5-
ineffective assistance. United States v. Richardson, 195 F.3d 192,

198 (4th Cir. 1999).          To allow for adequate development of the

record,   claims   of    ineffective     assistance      generally      should   be

brought in a 28 U.S.C. § 2255 (2000) motion.                 United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997).            We find that, because the

record does not conclusively establish ineffective assistance,

Gordon’s claim is not cognizable on direct appeal.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm in part and dismiss 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 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.

                                                            AFFIRMED IN PART;
                                                            DISMISSED IN PART




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