UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4471

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PHILIP B. GREER,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (1:01-cr-00045; 3:01-cr-00011-3)

Submitted: November 30, 2007 Decided: December 28, 2007

Before TRAXLER, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Glenn L. Cavanagh, CAVANAGH & ASSOCIATES, P.C., Clark, New Jersey,

for Appellant. Gretchen C. F. Shappert, United States Attorney,

Charlotte, North Carolina, Amy E. Ray, Assistant United States

Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Philip B. Greer pled guilty pursuant to a plea agreement

to one count of embezzlement and securities fraud, in violation of

7 U.S.C.A. §§ 13(a)(2), 60(1) (West 1999 & Supp. 2007) and 18

U.S.C. § 2 (2000), one count of conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371 (2000), one count of

conspiracy to commit money laundering, in violation of 18 U.S.C.

§§ 1956(h), 2 (West 2000 & Supp. 2007), and four counts of money

laundering. In his plea agreement, Greer agreed to waive his right

to appeal the convictions or sentence in a direct appeal or in a

post-conviction proceeding except for claims of ineffective

assistance of counsel or prosecutorial misconduct. Despite his

appeal waiver, Greer raises several issues. The Government seeks

enforcement of the appeal waiver. We dismiss the appeal. 

We review the validity of a waiver of appellate rights de

novo. United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000).

If the waiver is valid and the issue appealed is covered by the

waiver, and, as here, the Government relies upon the waiver, the

court will uphold it. United States v. Blick, 408 F.3d 162, 168-69

(4th Cir. 2005). A waiver is valid if the defendant's agreement to

the waiver was knowing and voluntary. United States v. Wessells,

936 F.2d 165, 167 (4th Cir. 1991). Generally, if a district court

fully questions a defendant regarding the waiver of appellate
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rights during the Fed. R. Crim. P. 11 colloquy, the waiver is

valid. Id. at 167-68.

Here, the magistrate judge conducted a thorough Rule 11

colloquy. The magistrate judge specifically discussed the appeal

waiver provision, and Greer indicated he understood it. Greer

agreed to waive appellate review of his sentence and conviction

except for issues concerning ineffective assistance of counsel and

prosecutorial misconduct. We conclude Greer’s appeal waiver was

knowing and voluntary. We further find the Government is not

estopped from seeking enforcement of the waiver. 

Insofar as Greer is attempting to frame his appellate

issues as being the result of ineffective assistance of counsel,

the claims are not cognizable on direct appeal. United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for

adequate development of the record, a defendant must bring his

claim in a 28 U.S.C. § 2255 (2000) motion. Id.; United States v.

Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists where

the record conclusively establishes ineffective assistance. United

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.), cert. denied,

546 U.S. 1203 (2006). We find the record does not conclusively

establish ineffective assistance of counsel. We also find Greer’s

claims do not fall into “the narrow class of claims” a defendant

may raise on appeal despite an enforceable appeal waiver. See

United States v. Lemaster, 403 F.3d 216, 220 n.2 (4th Cir. 2005).
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Accordingly, because of the appeal waiver, we dismiss the

appeal. 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