                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-5134


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DOUGLAS ANTHONY PENDERGRASS, a/k/a Willie Lee Atkinson,
a/k/a Demarcus Smith, a/k/a Emmanuel Snowden, a/k/a Raymond
James Morgan, a/k/a Tyrone R. Grier, a/k/a Eric Angelo
Turner, a/k/a Darrell Duane Jones, a/k/a Suman Cuddapah,
a/k/a Odell Francis Gaymon, a/k/a Craig Anthony Johnson,
a/k/a Anthony James Pendergrass, a/k/a Michael Anthony
Eugene Williams, a/k/a Donneyel Frazier Taylor, a/k/a David
Anthony Pendergrass, a/k/a Douglas Antoine Pendergrass,
a/k/a Ronald Scott Bridges, a/k/a Kyle Tremaine Mobley,
a/k/a Arnold A. Daniels, a/k/a Ewon Suman Cuddapah,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cr-01049-RBH-1)


Submitted:   December 13, 2012             Decided:   January 8, 2013


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam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


Jessica Salvini, SALVINI     &     BENNETT, LLC, Greenville, South
Carolina, for Appellant.         William N. Nettles, United States
Attorney, Jamie Lea Schoen, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Douglas Anthony Pendergrass pled guilty, pursuant to a

written plea agreement, to bank fraud, in violation of 18 U.S.C.

§ 1344 (2006), and was sentenced to 37 months of imprisonment.

On    appeal,    counsel     files     a    brief    raising     one    issue:     whether

Pendergrass received ineffective assistance of counsel.                            Counsel

raises four other issues pursuant to Anders v. California, 386

U.S. 738 (1967), asserting that there are no meritorious grounds

for     appeal,        but      questioning:         (1)     whether         Pendergrass’

constitutional         rights    were      violated     when     he    was    denied     the

ability to challenge the validity of the superseding indictment

against him; (2) whether the district court erred by denying

Pendergrass’ post-guilty plea motion to dismiss on the grounds

of ineffective assistance; (3) whether the district court erred

by sua sponte failing to recuse itself from Pendergrass’ case;

and (4) whether the district court erred by denying Pendergrass’

objections to his criminal history calculation as set forth in

his    revised    presentence       report.          Pendergrass,      in    his   pro   se

supplemental          briefs,   also       alleges    ineffective       assistance       of

counsel    and    other      claims.        For   the   reasons       that    follow,     we

affirm in part, and dismiss in part.

            Claims of ineffective assistance of counsel are not

cognizable       on    direct    appeal,      unless       the   record      conclusively

establishes           ineffective       assistance.              United       States      v.

                                              3
Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                       Rather, to allow

for adequate development of the record, claims of ineffective

assistance generally should be brought in a 28 U.S.C.A. § 2255

(West Supp. 2012) motion.              United States v. Gastiaburo, 16 F.3d

582, 590 (4th Cir. 1994).              In this case, Pendergrass would have

to show that but for counsel’s alleged errors, he would not have

pled    guilty.         Hill   v.    Lockhart,      474    U.S.    52,   53-59    (1985).

Pendergrass       has       failed   to   meet      the    challenging        burden   of

establishing ineffective assistance at this juncture.                            Thus, we

affirm Pendergrass’ claims of ineffective assistance of counsel.

               As argued by the Government, Pendergrass has waived

his right to appeal the remainder of the issues he and his

counsel have raised, because of the appellate waiver contained

in     his    plea     agreement.         The       agreement      was      reviewed    at

Pendergrass’ plea hearing and Pendergrass acknowledged that he

was    waiving       his     appellate     rights,        except     for     ineffective

assistance       and    prosecutorial      misconduct.            Generally,      if   the

district court fully questions a defendant regarding the waiver

of    his    right     to   appeal   during     a   plea    colloquy       performed    in

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

and enforceable.            United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).            Accordingly, we conclude that Pendergrass has

waived       appellate      review   of   the    remaining        issues.      Thus,    we



                                           4
dismiss    the    remainder      of   the       issues    raised      in     Pendergrass’

appeal.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Pendergrass’ conviction and sentence.                                We

further grant Pendergrass’ motion to file a second supplemental

brief.     This court requires that counsel inform Pendergrass, in

writing,    of   the    right    to   petition      the       Supreme      Court    of   the

United States for further review.                 If Pendergrass 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    Pendergrass.        We

dispense    with       oral    argument     because           the    facts    and    legal

contentions      are   adequately       presented        in    the    materials     before

this Court and argument would not aid the decisional process.



                                                                     AFFIRMED IN PART;
                                                                     DISMISSED IN PART




                                            5
