                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-4204


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

JOHN A. BRYANT,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00347-REP-1)


Submitted:   September 15, 2011             Decided:   October 3, 2011


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Rebecca S. Colaw, Natalie C. Martin, Suffolk, Virginia, for
Appellant.    Olivia L. Norman, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            John A. Bryant appeals his conviction and 169-month

sentence, following his guilty plea to conspiracy to distribute

and possess with intent to distribute cocaine base, in violation

of 21 U.S.C. § 846 (2006).                   On appeal, Bryant’s attorney has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),    asserting       that     there      are      no       meritorious        grounds        for

appeal,     but      questioning            whether          trial        counsel           rendered

ineffective       assistance      of    counsel.                 Bryant    filed        a    pro    se

supplemental       brief     claiming        that       he       did    not     knowingly          and

intelligently        waive    his      right       to    appeal,          that     he       received

ineffective assistance of counsel, and that he was entitled to a

lesser    sentence     pursuant        to    the     Fair        Sentencing        Act      of   2010

(“FSA”).       The    Government       has     filed         a    motion      to    dismiss        the

appeal    on   the     basis      of    the     appellate              waiver      provision        in

Bryant’s plea agreement.

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

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

Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                                     We review the

validity of an appellate waiver de novo, and we will uphold a

waiver of appellate rights if the waiver is valid and the issue

being    appealed     is     covered    by     the      waiver.           United        States      v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005).                               An appellate waiver

is valid if the defendant’s agreement to the waiver was knowing

                                               2
and intelligent.          Id. at 169.            To determine whether a waiver is

knowing    and    intelligent,          we       examine         “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 omitted).              Generally, if a district court fully

questions a defendant regarding the waiver of appellate rights

during    the    Fed.     R.    Crim.       P.       11    colloquy,        and       the    record

indicates that the defendant understood the significance of the

waiver and was not denied effective assistance of counsel, the

waiver is valid.          United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).

            A    review    of    the    plea          colloquy       before       a    magistrate

judge confirms that Bryant knowingly and intelligently waived

his right to appeal.            In his plea agreement, Bryant explicitly

waived    the    right    to    challenge            his   conviction       and        a    sentence

imposed within the statutory maximum on any grounds whatever.

Bryant    confirmed       at    the    Rule          11    hearing      that      he       read   and

understood the plea agreement.                       The magistrate judge conducted

the   colloquy     required       under       Rule         11,      ensuring      that       Bryant

understood the charges and potential penalties and that Bryant

was   competent      to     enter      the           plea.       Contrary         to       Bryant’s

assertion, neither the magistrate judge nor the district court

                                                 3
informed    him    that     he   had    a    right      to    appeal.      We   therefore

conclude    that    Bryant       knowingly        and    intelligently        waived     the

right to challenge on appeal his sentence and the validity of

his guilty plea.       Accordingly, we grant the motion to dismiss as

to Bryant’s challenges to his sentence and guilty plea.

            However       broad,    the      waiver      provision      did     not   waive

Bryant’s right to appeal certain claims, including challenges to

a   sentence      imposed    in    excess         of    the    statutory      maximum,    a

sentence based on a constitutionally impermissible factor, or

counsel’s ineffective assistance.                   See Johnson, 410 F.3d at 151.

We have reviewed the record pursuant to Anders and conclude that

Bryant was sentenced within the statutory maximum and there is

no evidence that his sentence was based on a constitutionally

impermissible factor.             Further, because ineffective assistance

of counsel does not appear conclusively on the record, Bryant’s

claims    that    trial     counsel     rendered        ineffective       assistance      in

failing    to    adequately       advise      him      regarding    his    guilty     plea,

gather discovery, and timely file a notice of appeal are not

cognizable on direct appeal.                 See United States v. Benton, 523

F.3d 424, 435 (4th Cir. 2008).                    Accordingly, although we deny

the   Government’s     motion      to       dismiss     as    to   Bryant’s     claims    of

ineffective assistance of counsel, we affirm his conviction.

            In sum, the Government’s motion to dismiss is granted

in part and denied in part, Bryant’s appeal of his sentence and

                                              4
guilty plea is dismissed, and his conviction is affirmed.                This

court requires that counsel inform Bryant, in writing, of his

right to petition the Supreme Court of the United States for

further review.      If Bryant 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 Bryant.        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




                                     5
