                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4583


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICARDO W. MADDOX,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:08-cr-00090-IMK-JSK-1)


Submitted:   March 9, 2010                 Decided:   April 13, 2010


Before KING, SHEDD, and DAVIS, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


William L. Pennington, Morgantown, West Virginia, for Appellant.
John Castle Parr, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Ricardo W. Maddox pleaded guilty to distribution of

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

possession of a firearm after having been convicted of a crime

punishable by more than one year, in violation of 18 U.S.C.

§ 922(g)(1)        (2006).    The    district       court   sentenced    Maddox    to

eighty-four months of imprisonment and Maddox now appeals.                        His

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

U.S. 738 (1967), raising several issues but stating that there

are no meritorious issues for appeal.                   Maddox filed a pro se

supplemental brief raising additional issues. *                    The Government

has   filed    a    motion   to    dismiss    the    appeal    based   on   Maddox’s

waiver of his right to appeal.               For the reasons that follow, we

dismiss   the       appeal    of    Maddox’s        sentence    and     affirm    his

convictions.

              A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006).                   United States v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                      This court reviews

the validity of an appellate waiver de novo, and will enforce

the waiver if it is valid and the issue appealed is within the




      *
       We have considered the claims raised in Maddox’s pro se
brief and conclude that the claims lack merit.



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scope thereof.     United States v. Blick, 408 F.3d 162, 168 (4th

Cir. 2005).

            An appeal waiver is valid if the defendant knowingly

and   intelligently   agreed    to    the       waiver.        Id.   at    169.     To

determine   whether   a    waiver    is       knowing    and   intelligent,        this

court examines “the totality of the circumstances, including the

experience and conduct of the accused, as well as the accused’s

educational background and familiarity with the terms of the

plea agreement.”      United States v. General, 278 F.3d 389, 400

(4th Cir. 2002) (internal quotation marks and citation omitted).

Generally, if the district court fully questions a defendant

regarding the waiver of his right to appeal during the Fed. R.

Crim. P. 11 colloquy, the waiver is both valid and enforceable.

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005);

United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).

We have reviewed the record and conclude that Maddox knowingly

and intelligently entered into the plea agreement and understood

the appeal waiver.

            Accordingly,    Maddox    waived       the    right      to   appeal    his

sentence and the manner in which it was determined and we thus

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

The   appellate   waiver     does    not,       however,       preclude     us     from

considering Maddox’s remaining claims.                  Therefore, we deny the

motion to dismiss in part.

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             In    the    Anders          brief,       counsel       questions       whether   the

Government made a promise not contained in the plea agreement

regarding        the    sentence          Maddox       would       receive.         This   claim,

however, is unsupported by the record.                               Counsel also questions

whether     the        plea        should     be       set     aside     as    unknowing       and

involuntary based on alleged clerical errors in the record, on

Maddox’s misunderstanding of the charges against him, and on the

manner in which the factual basis was established at the Rule 11

hearing.

             Because Maddox did not move in the district court to

withdraw his guilty plea, any error in the Rule 11 hearing is

reviewed for plain error.                     See United States v. Martinez, 277

F.3d 517, 525 (4th Cir. 2002).                         Furthermore, there is a strong

presumption       that        a     defendant’s         guilty       plea     is    binding    and

voluntary if he has received an adequate Fed. R. Crim. P. 11

hearing.     United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.

1995);     see     Blackledge            v.   Allison,         431     U.S.    63,    74   (1977)

(finding that statements made during a plea hearing “carry a

strong    presumption             of     verity”).           Our     review    of    the   record

discloses that the district court fully complied with Rule 11.

We conclude, therefore, that the district court did not err in

accepting Maddox’s guilty plea as knowing and voluntary.

             Counsel              next     questions           whether        the     Government

retaliated against Maddox for filing a motion to dismiss and a

                                                   4
suppression motion by seeking a superseding indictment.                                This

claim, however, is based on a flawed factual premise and is

therefore without merit.         Counsel also questions the validity of

the   search     warrant    obtained       to     search       Maddox’s       residence.

However,    Maddox     waived   the    right       to        appeal    this    issue    by

pleading guilty.         See Menna v. New York, 423 U.S. 61, 62-63

(1975); Tollett v. Henderson, 411 U.S. 258, 267 (1973) (when

defendant   pleads     guilty   voluntarily,            he    waives    challenges       to

deprivations of constitutional rights occurring prior to guilty

plea).

            Finally,     counsel      questions         whether        Maddox’s      trial

counsel    was   ineffective.         To       prove    a     claim    of    ineffective

assistance of counsel, a defendant must show (1) “that counsel’s

performance      was     deficient,”       and         (2) “that       the     deficient

performance prejudiced the defense.”                    Strickland v. Washington,

466 U.S. 668, 687 (1984).          With respect to the first prong, “the

defendant must show that counsel’s performance fell below an

objective     standard     of   reasonableness.”                Id.    at     688.      In

addition, “[j]udicial scrutiny of counsel’s performance must be

highly deferential.”        Id. at 689.          Under the second prong of the

test in the context of a conviction following a guilty plea, a

defendant can show prejudice only by demonstrating “a reasonable

probability that, but for counsel’s errors, he would not have



                                           5
pleaded    guilty      and    would        have      insisted       on    going       to   trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

            This       court       may      address          a    claim        of   ineffective

assistance on direct appeal only if the lawyer’s ineffectiveness

conclusively       appears          on     the       record.             United       States       v.

Baldovinos,      434     F.3d       233,    239       (4th       Cir.     2006).           We    have

thoroughly reviewed the record and conclude that it does not

conclusively     demonstrate             that    Maddox’s         trial    counsel         rendered

ineffective assistance.              We accordingly decline to consider this

claim on direct appeal.

            We have examined the entire record in accordance with

the requirements of Anders and have found no meritorious issues

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

dismiss as to Maddox’s sentence, deny the motion as to Maddox’s

convictions,       and     affirm         Maddox’s          convictions.            This        court

requires that counsel inform Maddox, in writing, of the right to

petition   the     Supreme         Court    of       the    United       States     for     further

review.     If     Maddox       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 Maddox.

            We dispense with oral argument because the facts and

legal   contentions          are    adequately             presented      in    the    materials

                                                 6
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                        AFFIRMED IN PART;
                                                        DISMISSED IN PART




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