UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4480
PAUL BRIAN LOWERY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-00-129-BR)
Submitted: October 10, 2002
Decided: October 23, 2002
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Eliza-
bethtown, North Carolina, for Appellant. Thomas B. Murphy, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LOWERY
OPINION
PER CURIAM:
Paul Brian Lowery pled guilty pursuant to a plea agreement to
making a false statement during a firearms transaction, in violation of
18 U.S.C. § 922(a)(6) (2000). He was sentenced to ninety-six months
imprisonment, to be followed by three years of supervised release.
The plea agreement contained a waiver of appellate review, except-
ing the right to appeal based upon grounds of ineffective assistance
of counsel or prosecutorial misconduct not known to the Defendant
at the time of his guilty plea. Nevertheless, Lowery noted an appeal
and raised several sentencing issues and that counsel rendered consti-
tutionally ineffective assistance. The Government now moves to dis-
miss the appeal in part and for summary affirmance in part. Lowery
opposes the motion.
A waiver of appeal provision in a valid plea agreement is enforce-
able if it resulted from a knowing and intelligent decision to forgo an
appeal. United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994);
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court
reviews de novo the validity of a waiver. United States v. Brown, 232
F.3d 399, 402-03 (4th Cir. 2000). Lowery asserts that the alleged con-
stitutional errors in sentencing proximately caused by ineffective
assistance of counsel should void the appeal waiver. He further argues
that the waiver is unenforceable under United States v. Wessells, 936
F.2d 165, 167-68 (4th Cir. 1991), because the district court did not
specifically question him about the appellate rights waiver. Generally,
if the district court fully questions a defendant regarding the waiver
of his right to appeal during a Fed. R. Crim. P. 11 colloquy, the
waiver is both valid and enforceable. Id. at 167-68.
In Wessells, this court found that the Defendant’s Rule 11 hearing
revealed "that the court did not question Wessells specifically regard-
ing the waiver of the plea agreement." Id. at 168. The only discussion
of the plea agreement was a statement regarding the waiver by Wes-
sells’ attorney. Id. In contrast, the district court in Lowery’s case
restated the appeal waiver provision and asked Lowery if it had accu-
rately summarized the terms and conditions of the agreement as Low-
UNITED STATES v. LOWERY 3
ery understood it, to which Lowery responded that he understood.
Therefore, we conclude the appeal waiver is valid and enforceable
and grant the Government’s motion to dismiss all the claims related
to sentencing as waived.
The only remaining claim that we find is not covered by the waiver
is Lowery’s argument that counsel rendered ineffective assistance. To
succeed on a claim of ineffective assistance of counsel, a defendant
must show that his counsel’s performance fell below an objective
standard of reasonableness and that counsel’s deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Claims of ineffective assistance of counsel are generally not
cognizable on appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Such claims must ordinarily be pursued in a motion under
28 U.S.C. § 2255 (2000), to allow for adequate development of the
record. United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An
exception to this rule applies when the record on direct appeal conclu-
sively establishes that the defendant did not receive constitutionally
sufficient assistance of counsel. King, 119 F.3d at 295. The record in
this case does not conclusively establish that Lowery received consti-
tutionally inadequate counsel. Therefore, this claim must be raised in
a § 2255 motion.
We grant the Government’s motion to dismiss in part and to sum-
marily affirm Lowery’s conviction. 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; AFFIRMED IN PART