                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 11-4501


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

GEORGE E. GRAY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
District Judge. (5:10-cr-00146-FL-1)


Submitted:   January 6, 2012                 Decided:   January 12, 2012


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part, by unpublished per curiam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


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:

              George E. Gray pled guilty in a Fed. R. Crim. P. 11

hearing to one count of being a convicted felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006).                        He was

sentenced to 87 months in prison.                In accordance with Anders v.

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

brief certifying that there are no meritorious issues for appeal

but questioning whether Gray was properly subject to an increase

in his base offense level pursuant to U.S. Sentencing Guidelines

Manual (“USSG”) § 2K2.1(a)(2) (2010).                  Gray has filed a pro se

supplemental brief in which he contends that the district court

and the Government committed numerous violations of the Federal

Rules    of    Criminal   Procedure       and     his    constitutional         rights

leading up to his Rule 11 hearing.               Gray also claims ineffective

assistance     of    counsel     and    alleges       that   the    district        court

improperly declined to grant him a downward                        departure due to

his medical conditions, pursuant to USSG § 5H1.4, p.s.

              The Government has filed a motion to dismiss Gray’s

appeal   of    his    sentence    pursuant       to    the    terms     of    his    plea

agreement’s waiver of appellate rights.                      This waiver forfeits

Gray’s right to appeal his sentence, unless (1) it was in excess

of the advisory Guidelines range established at sentencing or

(2) his appeal is based on “ineffective assistance of counsel or

prosecutorial       misconduct    not    known    to    [Gray]     at   the    time    of

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[his] guilty plea.”            For the following reasons, we grant the

Government’s motion to dismiss Gray’s appeal of his sentence and

affirm Gray’s conviction.

             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 issues that fall within the scope

of    the   waiver.     United      States v.       Blick,      408    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,    the     record   indicates         that   the    district        court

substantially complied with Rule 11 when accepting Gray’s plea,

and specifically confirmed Gray’s understanding of the terms of

his appellate waiver.           Given no indication in the record to the

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contrary,       we     find     that     Gray’s         waiver    of    appellate       rights    is

valid    and        enforceable.          Furthermore,            because      Gray’s     87-month

sentence falls within the Guidelines range established at his

sentencing, we hold that the sentencing issues Gray seeks to

raise     on        appeal      fall     squarely         within       the     compass    of     his

appellate waiver.               Accordingly, we grant the Government’s motion

to dismiss Gray’s appeal of his sentence.

               We next consider Gray’s allegations of violations of

the Federal Rules of Criminal Procedure and his constitutional

rights prior to the entry of his guilty plea.                                      A counseled

guilty plea waives all antecedent nonjurisdictional defects not

logically inconsistent with the establishment of guilt, unless

the    defendant          can   show     that       his    plea    was    not    voluntary       and

intelligent because the advice of counsel “was not within the

range of competence demanded of attorneys in criminal cases.”

Tollett        v.     Henderson,        411        U.S.    258,     266      (1973)      (internal

quotation marks omitted); United States v. Moussaoui, 591 F.3d

263,    279         (4th     Cir.      2010).            Furthermore,          defects    in     the

indictment,          to    which       Gray     alludes,         are     not    jurisdictional.

United States v. Cotton, 535 U.S. 625, 631 (2002).                                 Here, Gray’s

plea was counseled, knowing, and voluntary.                                  Accordingly, save

his claim of ineffective assistance of counsel, Gray’s guilty

plea     forecloses             review        of     the     pre-plea          procedural        and

constitutional violations alleged in his supplemental brief.

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             We    note,     however,      that      Gray’s     claim     of    ineffective

assistance    of     counsel       is    not     suitable      for   review      on   direct

appeal.      Claims of ineffective assistance of counsel generally

are   not     cognizable          on     direct       appeal     unless        the    record

conclusively        establishes          counsel’s      “objectively           unreasonable

performance” and resulting prejudice.                        United States v. Benton,

523   F.3d    424,     435      (4th     Cir.       2008).      Instead,        ineffective

assistance claims should be raised in a motion brought pursuant

to 28 U.S.C.A. § 2255 (West Supp. 2011) in order to promote

sufficient        development       of     the       record.         United     States    v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).                               Because the

record before us does not conclusively establish that Gray’s

counsel was ineffective, we decline to consider this claim on

direct appeal.

             In accordance with Anders, we have reviewed the record

and have found no meritorious issues for appeal.                               We therefore

affirm Gray’s conviction and dismiss the appeal of his sentence.

This court requires that counsel inform Gray, in writing, of his

right to petition the Supreme Court of the United States for

further review.        If Gray requests that a petition be filed, but

counsel     believes       that    such     a       petition    would     be     frivolous,

counsel     may    move    in     this    court      for     leave   to   withdraw       from

representation. Counsel’s motion must state that a copy thereof

was served on Gray.             We dispense with oral argument because the

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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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