                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4410


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

     v.

LLOYD BRIDGES WALLACE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00135-BR-1)


Submitted:   March 30, 2012                 Decided:   April 26, 2012


Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam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


Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lloyd Bridges Wallace pled guilty, pursuant to a plea

agreement,    to    possession          of    stolen    mail,   in   violation    of   18

U.S.C. 1708 (2006) and aggravated identity theft, in violation

of 18 U.S.C. 1028A (2006). He appeals the judgment entered after

re-sentencing       upon       remand.         In    accordance      with    Anders    v.

California, 386 U.S. 738 (1967), Wallace’s attorney has filed a

brief certifying that there are no meritorious issues for appeal

but questioning whether the district court erred in failing to

dismiss the aggravated identity theft count, in ordering Wallace

to pay restitution to International, Inc., enhancing Wallace’s

sentence   based        on    amount     of    loss,     and    whether     counsel    was

ineffective        in       failing      to     argue     the     above      issues     at

re-sentencing and in failing to raise changes in the aggravated

identity theft statute in the Fed. R. Crim. P. 35(a) motion.

Wallace    filed        a    pro   se    supplemental      brief     raising     similar

challenges.        The Government moved to dismiss Wallace’s appeal

based on his appellate waiver.                     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

                                               2
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

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    Rule    11    when     accepting

Wallace’s plea and specifically reviewed the terms of his plea

agreement with him, including his appellate waiver.                                Wallace

does not attempt to challenge the voluntariness of his plea.

Given no indication in the record to the contrary, we find that

Wallace’s waiver of appellate rights is valid and enforceable.

Accordingly,      we       grant      the    Government’s        motion     to     dismiss

Wallace’s appeal of any issues covered by the waiver.                                   These

include all sentencing issues and the claim that the district

court should have dismissed the aggravated identity theft count.

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We   find,    however,       that       Wallace’s       appellate         waiver      does    not

prevent    our     review     of    his    ineffective            assistance         of   counsel

claims.      We therefore deny the Government’s motion to dismiss

Wallace’s appeal as to these claims.

              We    affirm        the     judgment           as    to      the     ineffective

assistance of counsel claims 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.          This    court

requires that counsel inform Wallace, in writing, of his right

to petition the Supreme Court of the United States for further

review.       If    Wallace       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

Wallace.      We dispense with oral argument because the facts and

legal   contentions         are    adequately          presented         in    the    materials




                                                 4
before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                       DISMISSED IN PART;
                                                         AFFIRMED IN PART




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