                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5188


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL GEROD WESTBROOK,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:09-cr-00714-CMC-2)


Submitted:   December 13, 2010            Decided:   January 21, 2011


Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant.     James Chris Leventis, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael       Gerod    Westbrook        pled       guilty,      pursuant     to   a

written plea agreement, to conspiracy to possess with intent to

distribute    cocaine       and    cocaine        base       (crack).          The   statutory

mandatory minimum sentence applicable to Westbrook’s offense was

240 months.        The applicable guidelines range was 360 months to

life imprisonment.           The district court sentenced Westbrook to

360 months’ imprisonment.

            On     appeal,     Westbrook’s         counsel         has    filed      a   brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that there are no viable grounds for appeal, but questioning

whether   Westbrook’s        appeal       waiver        is     valid     and    enforceable;

whether     the     district       court      erred       by      denying       Westbrook     a

reduction     for       acceptance       of     responsibility           and     Westbrook’s

motion for a downward variance in sentence; whether the United

States breached the plea agreement by not filing a motion for a

reduction     in        sentence        based      on        Westbrook’s         substantial

assistance;       and    whether     claims        that       counsel     below      provided

ineffective       assistance      may    be     raised       on   direct       appeal.      The

Government has moved to dismiss the appeal based on Westbrook’s

waiver of his right to appeal.                    Westbrook opposes the motion,

noting that three of the five issues raised on appeal are not

within the scope of the waiver.                         He asserts that claims of

ineffective assistance of counsel and prosecutorial misconduct

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are excepted from the appeal waiver, and therefore the appeal

should not be dismissed as to the challenges to the Government’s

potential         breach        of      the       plea        agreement,        counsel’s

ineffectiveness,          and    the     validity        of    the     appeal    waiver.

Westbrook filed a supplemental pro se brief asserting that the

Government breached the plea agreement, that the court erred in

denying him the acceptance of responsibility reduction, and that

the plea was unknowing and involuntary.                       We dismiss in part and

affirm in part.

              A   defendant     may     waive     the    right    to   appeal    if   that

waiver is knowing and intelligent.                  United States v. Poindexter,

492 F.3d 263, 270 (4th Cir. 2007).                      Generally, if the district

court fully questions a defendant regarding the waiver of his

right to appeal during the plea colloquy performed in accordance

with   Fed.       R.    Crim.   P.     11,    the   waiver       is    both   valid   and

enforceable.           See 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).           The question of whether a defendant validly

waived his right to appeal is a question of law that this court

reviews de novo.          United States v. Blick, 408 F.3d 162, 168 (4th

Cir. 2005).

              Our review of the record leads us to conclude that

Westbrook knowingly and voluntarily waived the right to appeal

his sentence.          He has therefore waived review by this court of

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his    challenge    to    the   district       court’s      denial    of    a   variance

sentence    and    the    denial    of    the    reduction      for   acceptance      of

responsibility.          We therefore grant the Government’s motion to

dismiss in part and dismiss the appeal as to these issues and as

to    Westbrook’s    sentence.          Although     Westbrook’s      appeal       waiver

insulates his sentence from appellate review, the waiver does

not preclude our consideration of the remaining claims raised by

Westbrook    and    counsel,      and    does    not   prohibit       our   review    of

Westbrook’s    conviction        pursuant       to   Anders.     Consequently,        we

deny the motion to dismiss in part.

            Turning       then,     to     the       unwaived    claims,         because

Westbrook did not move in the district court to withdraw his

guilty plea, the adequacy of the Rule 11 hearing is reviewed for

plain error.        See United States v. Martinez, 277 F.3d 517, 525

(4th Cir. 2002).           Our review of the transcript of the plea

hearing    leads    us    to    conclude    that      the   district       court   fully

complied with Rule 11 in accepting Westbrook’s guilty plea.                          The

court ensured that Westbrook understood the charge against him

and the potential sentence he faced; that he entered his plea

knowingly and voluntarily; and that the plea was supported by an

independent factual basis.               See United States v. DeFusco, 949

F.2d 114, 116, 119-20 (4th Cir. 1991).                   Accordingly, we discern

no plain error in the district court’s acceptance of Westbrook’s

guilty plea.

                                           4
                Next, Westbrook and counsel argue that the Government

breached the plea agreement by failing to move for a downward

departure based on Westbrook’s cooperation with the authorities,

which      they     contend     amounted      to     substantial          assistance.

Westbrook has the burden of showing by a preponderance of the

evidence that the Government breached the plea agreement.                          See

United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).                          The

determination of whether the defendant has provided substantial

assistance is within the Government’s discretion.                        Id. at 190.

The record in this case fails to show that Westbrook provided

substantial assistance.           Additionally, the plea agreement did

not obligate the Government to move for such a departure, and

there is no evidence that the Government refused to make such a

motion based on any unconstitutional motive.                     See Wade v. United

States, 504 U.S. 181, 185-86 (1992) (holding that defendant must

make substantial threshold showing of improper motive to obtain

review     of    Government’s   decision      not    to   move     for    substantial

assistance departure).          We find no breach of the plea agreement

by   the    Government’s      decision       not    to    move     for    a   downward

departure.

                The final claim asserted on appeal is that Westbrook

received ineffective assistance of counsel at the district court

level.          Claims   of   ineffective      assistance         of     counsel   are

generally not cognizable on direct appeal.                        These claims are

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more   appropriately            raised       in    a     motion          filed     pursuant        to    28

U.S.C.A.        § 2255          (West        Supp.            2010),          unless           counsel’s

ineffectiveness conclusively appears on the record.                                        See United

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                                           After

review    of    the       record,       we    find          no    conclusive            evidence       that

counsel     rendered           ineffective         assistance,               and    we     accordingly

decline to consider these claims on direct appeal.

               In    accordance         with       Anders,             we    have       reviewed        the

remainder       of       the    record       in     this         case       and     have       found     no

meritorious          issues       not    foreclosed               by     Westbrook’s           appellate

waiver.     We therefore affirm Westbrook’s conviction and dismiss

the appeal of his sentence.                       This court requires that counsel

inform    Westbrook,           in    writing,          of    the       right       to    petition       the

Supreme    Court         of    the   United        States         for       further      review.         If

Westbrook       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 Westbrook.                 We dispense with oral argument because

the facts and legal contentions are adequately presented in the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                     DISMISSED IN PART;
                                                       AFFIRMED IN PART




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