                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4747



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOSHUA ALAN HUFFMAN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-02-41-V)


Submitted:   September 28, 2005           Decided:   November 2, 2005


Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.


Dismissed in part and affirmed in part by unpublished per curiam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


Denzil H. Forrester, DENZIL H. FORRESTER, Charlotte, North
Carolina, for Appellant. Robert J. Conrad, Jr., United States
Attorney, Kimlani S. Murray, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

                Joshua Alan Huffman appeals his conviction and 117 month

sentence imposed after he pleaded guilty, pursuant to a plea

agreement, to one count of bank robbery by force or violence, in

violation of 18 U.S.C. § 2113(a) (2000), and one count of using and

carrying a firearm during and in relation to a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A) (2000).                    We affirm in part

and dismiss in part.

                On appeal, counsel filed an Anders* brief asserting that

there     are    no    meritorious      issues     for    appeal,    but    arguing    at

Huffman’s request that the prosecutor engaged in misconduct and

that Huffman’s counsel at trial was ineffective.                     Huffman filed a

pro     se   supplemental        brief     in    which     he    asserted    that     the

enhancements          of   his   offense    level        violated    the    holding    of

Blakely v. Washington, 542 U.S. 296 (2004), and he is entitled to

be resentenced. In his supplemental brief addressing the impact of

United States v. Booker, 125 S. Ct. 738 (2005), counsel asserts

that because Huffman’s mental capacity was never evaluated by a

qualified physician, the district court could not give reasonable

consideration to that factor in determining Huffman’s sentence

pursuant     to    Booker.        In   a   supplemental         response    brief,    the

Government        argues     that,     unlike    the      claims    of   prosecutorial

misconduct and ineffective assistance of counsel asserted in the


      *
        Anders v. California, 386 U.S. 738 (1967).

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opening brief, the sentencing claims in the supplemental briefs are

precluded by the waiver of appellate rights in Huffman’s plea

agreement.

            Huffman   initially    asserts    that   the    Assistant     United

States Attorney (AUSA) engaged in misconduct in failing to mention

at sentencing that Huffman brandished the handgun used in the

second robbery. A claim of prosecutorial misconduct is reviewed to

determine whether the conduct complained of so infected the trial

with unfairness as to make the resulting conviction a denial of due

process.     United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.

2002). To prevail under this standard, Huffman must show that “the

prosecutor’s remarks or conduct were improper and, second . . .

that such remarks or conduct prejudicially affected his substantial

rights” so as to deprive him of a fair trial.              Id.   Our review of

the record leads us to conclude that none of the AUSA’s remarks

were improper, and her failure to mention at sentencing that

Huffman brandished a firearm was also not improper. Moreover, even

if there were some impropriety in the AUSA’s remarks, Huffman has

not demonstrated any prejudice resulting from those remarks.

            Huffman also asserts that counsel was ineffective in

failing    to   petition   the   district    court   for    a    mental   health

evaluation      based upon an injury to his frontal lobe caused by an

assault during a robbery in September 2001.                 An allegation of

ineffective assistance should not proceed on direct appeal unless


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it appears conclusively from the record that counsel’s performance

was ineffective.      United States v. Richardson, 195 F.3d 192, 198

(4th Cir. 1999).      We conclude that counsel’s purported deficient

performance in failing to request a mental health evaluation is not

apparent    from    the   record,   as    Huffman’s    competence    was   not

reasonably put in issue.        Beck v. Angelone, 261 F.3d 377, 387 (4th

Cir. 2001). Huffman may assert his ineffective assistance claim in

proceedings under 28 U.S.C. § 2255 (2000).

            The    Government    argues   that   the   substantive     issues

attacking his sentence that Huffman asserts in his pro se and

formal supplemental briefs are barred by the plea agreement waiver

of appellate rights.         We review the validity of a waiver of

appellate rights de novo, United States v. Brown, 232 F.3d 399, 403

(4th Cir. 2000), and will uphold it if the waiver is valid and the

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

Attar, 38 F.3d 727, 731-33 (4th Cir. 1994).            A waiver is valid if

the defendant’s agreement to the waiver was knowing and voluntary.

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United

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

if a district court fully questions a defendant regarding his

waiver of appellate rights during the Rule 11 colloquy, the waiver

is valid.    Wessells, 936 F.2d at 167-68.

            In this case, the magistrate judge conducted a Rule 11

colloquy, had the AUSA summarize the plea agreement, including the


                                    - 4 -
waiver provision, and asked Huffman whether he agreed with the

AUSA’s summary and whether he had signed the plea agreement.

Huffman replied in the affirmative. Huffman was nineteen years old

and had a ninth grade education.   He indicated that he understood

the proceedings and, although he was taking medication for an

anxiety disorder and depression, the medication did not impair his

ability to understand and participate in the proceedings.      The

magistrate judge also correctly explained the statutory maximum

penalties for the charges to which Huffman agreed to plead guilty.

Huffman’s sentence of 117 months of imprisonment was within this

statutory range.   Although the district court’s discussion of the

plea agreement was somewhat brief, it was sufficient to establish

that Huffman knowingly and intelligently entered into the plea

agreement and the appellate waiver provision.     United States v.

General, 278 F.3d 389, 399-401 (4th Cir. 2002).

          Moreover, we recently held that a plea agreement waiver

of the right to appeal that was accepted prior to the Supreme

Court’s decision in Booker was not invalidated by the change in law

effected by that decision.   United States v. Blick, 408 F.3d 162,

170-71 (4th Cir. 2005).   We conclude that Huffman’s waiver of his

right to appeal was knowing and voluntary and his sentence is

within the scope of the waiver provision.   We therefore decline to

consider the substantive arguments related to his sentence.




                               - 5 -
          In accordance with Anders, we have thoroughly examined

the entire record for any other potentially meritorious issues and

have found none.   Accordingly, we affirm Huffman’s conviction and

sentence and dismiss his claims under Blakely and Booker as barred

by his plea agreement waiver.      This court requires that counsel

inform Huffman, in writing, of the right to petition the Supreme

Court of the United States for further review. If Huffman 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 Huffman.        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.



                                              DISMISSED IN PART AND
                                                   AFFIRMED IN PART




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