                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4148


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LEWELLYN TERRELL VAUGHT, a/k/a Gee Bee,

                Defendant - Appellant.



                            No. 12-4149


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DESMON TERRILL BARNHILL, a/k/a T.B., a/k/a Terry,

                Defendant - Appellant.




Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:10-cr-00075-D-2; 7:10-cr-00075-D-1)


Submitted:   December 21, 2012            Decided:   January 7, 2013


Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.


W. H. Paramore, III, THE LAW OFFICES OF W. H. PARAMORE, III,
Jacksonville, North Carolina; Mark R. Sigmon, GRAEBE HANNA &
WELBORN,   PLLC,  Raleigh,   North   Carolina, for Appellants.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               A federal grand jury returned a multi-count indictment

against    Lewellyn      Terrell       Vaught      and     Desmon      Terrill    Barnhill.

Vaught    pled       guilty    without    a       plea    agreement       to    aiding   and

abetting the distribution of cocaine, in violation of 18 U.S.C.

§ 2 (2006) and 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2012)

(count    four),      and     distribution         of    cocaine,       in   violation    of

21 U.S.C.A.         § 841(a)(1)    (count         five).      Barnhill         pled   guilty

without    a    plea    agreement       to    two       counts    of    distribution     of

cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (counts six and

eight).         The    Government       later       filed     a     one-count     criminal

information charging Barnhill with conspiracy to possess with

intent to distribute and to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. § 846 (2006) and a two-count

criminal information charging Vaught with conspiracy to possess

with intent to distribute and to distribute 500 grams or more of

cocaine,       in    violation    of    21    U.S.C.       § 846       (count    one),   and

possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1), 924 (2006) (count two).                             Both defendants

pled guilty as charged in the informations, pursuant to written

plea agreements.

               The    district    court       calculated          Vaught’s       Guidelines

ranges on counts one, four, and five at 168 to 210 months’

imprisonment and Guidelines sentence on count two at 120 months’

                                              3
imprisonment and sentenced Vaught to three concurrent terms of

168 months’ imprisonment on counts one, four, and five and a

concurrent term of 120 months’ imprisonment on count two.                         The

district    court    calculated     Barnhill’s     Guidelines      range    on    all

three counts to which he pled guilty at 168 to 210 months’

imprisonment and sentenced him to three concurrent terms of 180

months’ imprisonment.

             On appeal, counsel have filed a joint brief pursuant

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

are   no   meritorious     issues     for   appeal.        Counsel    for    Vaught

questions, however, whether the district court erred in adopting

the presentence report’s calculation of the amount of cocaine

base for which Vaught was responsible.                    Counsel for Barnhill

questions    whether     Barnhill’s    guilty     pleas    were    knowingly      and

voluntarily      made,   whether    trial   counsel       rendered    ineffective

assistance, and whether Barnhill’s sentence is procedurally and

substantively reasonable.           The Government moves to dismiss the

appeals    of    defendants’   sentences      based   on     their    waivers      of

appellate rights.        Both defendants were informed of their rights

to file pro se supplemental briefs, and Vaught has filed a pro

se brief raising several challenges, including challenges to his

sentences.       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,

                                        4
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.          United     States     v.    Johnson,      410       F.3d    137,    151

(4th Cir. 2005).            Whether a defendant validly waived his right

to     appeal    is     a    question      of    law     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

Vaught knowingly and voluntarily waived the right to appeal his

168-month sentence on count one and his 120-month sentence on

count    two.      We      further   conclude     that    Barnhill         knowingly      and

voluntarily waived his right to appeal his 180-month sentence

imposed with respect to the conspiracy count in the criminal

information.          We    therefore     grant    the    Government’s           motion    to

dismiss in part and dismiss the appeals of those sentences.

            Although         Vaught’s      and     Barnhill’s         appeal        waivers

insulate those sentences from appellate review, the waivers do

not prohibit our review of the non-sentencing claims raised by

Barnhill’s counsel and Vaught, the sentencing claims raised by

counsel     in    the       Anders   brief       and     Vaught      in     his    pro     se

supplemental brief to the extent they pertain to the sentences

imposed on counts four, five, six, and eight of the indictment,

                                            5
and the remainder of record pursuant to Anders.                           Accordingly, we

deny the Government’s motion to dismiss the appeals in part.

            Barnhill’s         counsel         questions        whether       the     district

court reversibly erred in accepting his guilty pleas. *                                Because

Barnhill did not move in the district court to withdraw his

guilty pleas, the adequacy of the Fed. R. Crim. P. 11 hearings

is reviewed for plain error only.                       United States v. Martinez,

277 F.3d 517, 524-26 (4th Cir. 2002).                            To demonstrate plain

error, a defendant must show: (1) there was error; (2) the error

was   plain;       and    (3)        the       error    affected        his     substantial

rights. United States v. Olano, 507 U.S. 725, 732 (1993).                                      In

the   guilty      plea    context,         a    defendant       meets     his       burden    to

establish that a plain error affected his substantial rights by

showing a reasonable probability that he would not have pled

guilty     but    for    the    Rule       11       omission.         United        States    v.

Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).

            Our    review       of    the      transcripts       of     the     guilty       plea

hearings     leads       us     to     conclude        that      the     district        court

substantially complied with the mandates of Rule 11 in accepting

Barnhill’s guilty pleas and that the court’s omissions did not

      *
       The Government moves to dismiss Barnhill’s challenge to
the acceptance of his guilty pleas.        This constitutes, in
effect, a motion for summary affirmance of the unwaived claim.
This   court   reserves   such  a   motion    for  extraordinary
circumstances not present here. 4th Cir. R. 27(f).



                                                6
affect     Barnhill’s        substantial                rights.        Critically,     the

transcripts       reveal   that     the       district       ensured    the   pleas    were

supported by independent bases in fact and that Barnhill entered

the pleas knowingly and voluntarily with an understanding of the

consequences.       United States v. DeFusco, 949 F.2d 114, 116, 120

(4th Cir. 1991).          Accordingly, we discern no plain error in the

district court’s acceptance of Barnhill’s guilty pleas.

            Next, Barnhill’s counsel and Vaught question whether

trial     counsel        rendered     ineffective             assistance      prior     to

sentencing.        After review of the record, we find these claims

inappropriate       for     resolution             on     direct   appeal.          Because

ineffectiveness of counsel is not conclusively established by

the record, Barnhill and Vaught must assert such claims, if at

all, in a motion pursuant to 28 U.S.C.A. § 2255 (West Supp.

2012).      United States v. King, 119 F.3d 290, 295 (4th Cir.

1997).

            Turning to the district court’s imposition of sentence

on counts four, five, six, and eight, we review these sentences

for     reasonableness      “under        a    deferential         abuse-of-discretion

standard.”        Gall v. United States, 552 U.S. 38, 41, 51 (2007).

This     review     entails    appellate                consideration    of    both     the

procedural         and       substantive                 reasonableness        of       the

sentence.     Id. at 51.      In determining procedural reasonableness,

we consider whether the district court properly calculated the

                                               7
defendant’s       advisory     Guidelines          range,    gave     the       parties     an

opportunity to argue for an appropriate sentence, considered the

18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on

clearly erroneous facts, and sufficiently explained the selected

sentence.       Id. at 49-51.       If the sentence is free of significant

procedural error, we review it for substantive reasonableness,

“tak[ing]         into        account             the        totality            of         the

circumstances.”           Id. at    51.       If    the   sentence        is    within      the

properly calculated Guidelines range, we apply a presumption on

appeal that the sentence is substantively reasonable.                                 United

States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).

Such a presumption is rebutted only if the defendant shows “that

the sentence is unreasonable when measured against the § 3553(a)

factors.”        United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).

               After review of the record, we conclude that Vaught

and    Barnhill    both     fail   to     establish       any     clear   error       in    the

district        court’s      calculations           of      the     drug         quantities

attributable to them.              See United States v. Kellam, 568 F.3d

125,     147      (4th     Cir.     2009)          (stating        the      standard         of

review);       United     States    v.     Randall,         171    F.3d        195,   210-11

(4th Cir. 1999) (explaining that a defendant bears the burden of

establishing      that     information        in    the     presentence         report      the

district       court     relied    on    in   calculating          the    relevant         drug

                                              8
quantity     is   incorrect);     see   also   United     States       v.   Powell,

650 F.3d 388, 392 (4th Cir.) (holding that a sentencing court

may    consider      relevant     information        before     it,     including

uncorroborated      hearsay,     “provided     that     the   information       has

sufficient     indicia    of    reliability    to     support    its    accuracy”

(internal quotation marks omitted)), cert. denied, 132 S. Ct.

350 (2011).

            The district court also otherwise correctly calculated

the defendants’ Guidelines ranges, heard argument from counsel,

gave Barnhill the opportunity to allocute, and heard allocution

from Vaught.        The court also considered the § 3553(a) factors

with   respect      to   each   defendant      and    provided     an       adequate

explanation of its individualized assessment of those factors in

determining the defendants’ sentences.               Defendants do not offer,

and our review pursuant to Anders does not reveal, any grounds

to rebut the presumption on appeal that their within-Guidelines

sentences     are    substantively      reasonable.           Accordingly,       we

conclude that the district court did not abuse its discretion in

sentencing Vaught and Barnhill on those counts.

            Finally, in accordance with Anders, we have reviewed

the remainder of the record and have found no meritorious issues

for review.       Accordingly, we affirm the defendants’ convictions

on all counts and their sentences on counts four, five, six, and

eight, and dismiss the appeals of their sentences on counts one,

                                        9
two, and the conspiracy count in the information filed against

Barnhill.       We also deny as moot Vaught’s motion to accelerate

case processing.

            This    court   requires     that    counsel    inform       Vaught   and

Barnhill, in writing, of their rights to petition the Supreme

Court of the United States for further review.                      If Vaught or

Barnhill 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

Vaught or Barnhill.

            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.



                                                             DISMISSED IN PART;
                                                               AFFIRMED IN PART




                                       10
