UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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, Elizabethtown, North Carolina, for Appellant. Thomas B. Murphy, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
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, excepting 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 constitutionally ineffective assistance. The Government now moves to dismiss 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 enforceable 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 constitutional 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 regarding the waiver of the plea agreement." Id. at 168. The only discussion

of the plea agreement was a statement regarding the waiver by Wessells’ attorney. Id. In contrast, the district court in Lowery’s case

restated the appeal waiver provision and asked Lowery if it had accurately summarized the terms and conditions of the agreement as Low2 UNITED STATES v. LOWERY
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 conclusively 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 constitutionally inadequate counsel. Therefore, this claim must be raised in

a § 2255 motion. 

We grant the Government’s motion to dismiss in part and to summarily 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

UNITED STATES v. LOWERY 3