                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                 No. 01-4382
JERRY WAYNE MOODY, JR., a/k/a
Cakemix, a/k/a Cake,
               Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                         (CR-99-186-MU)

                   Submitted: December 4, 2001

                      Decided: January 18, 2002

  Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.



Affirmed in part and dismissed in part by unpublished per curiam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


                             COUNSEL

Aaron Edmund Michel, Charlotte, North Carolina, for Appellant.
Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
2                      UNITED STATES v. MOODY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Jerry Wayne Moody appeals his conviction of conspiracy to pos-
sess with intent to distribute cocaine base, in violation of 21 U.S.C.A.
§§ 841(a)(1) and 846 (West 1999). We affirm in part and dismiss in
part.

   Moody pled guilty pursuant to a valid plea agreement in which he
waived his right to appeal his conviction and sentence. Because a
valid waiver provision does not bar appellate review of certain "fun-
damental and immutable" constitutional challenges, United States v.
Attar, 38 F.3d 727, 732 (4th Cir. 1994) (citing United States v. Bus-
hert, 997 F.2d 1343, 1350 n.18 (11th Cir. 1993)), we review Moody’s
constitutional claims on their merits.

   Moody claims his constitutional rights were violated because he
was not made aware of the Superseding Indictment at the time of his
plea. Moody did not object to the Presentence Investigation Report’s
references to the Superseding Indictment or to its statement that
Moody pled guilty to Count One of the Superseding Bill of Indict-
ment. Therefore, we find this claim meritless.

   Moody contends the district court erred in applying certain sen-
tencing enhancements to his offense level, thereby violating his con-
stitutional rights. The Government did not seek enhancements and the
district court did not consider enhanced penalties when it sentenced
Moody. Therefore, we find this claim meritless.

   Moody also contends it was error, under Apprendi v. New Jersey,
530 U.S. 466 (2000), to increase his sentence for possession of a fire-
arm and for playing a leadership role and to add criminal history
points for a state conviction when those facts were not charged in the
indictment and proved beyond a reasonable doubt. Sentencing
                       UNITED STATES v. MOODY                        3
enhancements that do not increase the statutory maximum do not
implicate Apprendi. United States v. Kinter, 235 F.3d 192, 199-201
(4th Cir.), cert. denied, 121 S. Ct. 1393 (2001). None of the enhance-
ments Moody contests increased the statutory maximum. Further-
more, there is no plain error because Moody’s sentence does not
exceed the statutory maximum. See United States v. Dinnall, 269 F.3d
418, ___, 2001 WL 1229174, at *4 n.3 (4th Cir. 2001).

   Moody’s ineffective assistance of counsel claim is not cognizable
on direct appeal. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Because the record does not conclusively establish ineffective
assistance of counsel, this claim must be pursued in a 28 U.S.C.A.
§ 2255 (West Supp. 2001) motion. United States v. Hoyle, 33 F.3d
415, 418 (4th Cir. 1994). We therefore dismiss the appeal as to that
claim.

   Accordingly, we affirm Moody’s conviction and sentence and dis-
miss his ineffective assistance of counsel claim. We grant Moody’s
pro se motion to file a supplemental brief and have considered the
arguments raised in his brief. 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
