UN PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21

- 4160

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. MARQUAN DIONTAE PRESTON , Defendant

- Appellant

.

Appeal from the United States District Court for the Eastern District of North Carolina , at Raleigh

. Louise W. Flanagan , District Judge. ( 5:19

- cr - 00370

- FL

- 1 )

Submitted : November 2, 2021 Decided: January 14, 2022

Before GREGORY, Chief Judge, AGEE , Circuit Judge , and SHEDD, Senior Circuit Judge.
Affirmed in part and dismissed in part by un published per curiam opinion

. Jorgelina E. Araneda , ARANEDA LAW FIR M, Raleigh, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Jennifer P. May

- Parker, Assistant U nited States Attorney , OFFICE OF THE UNITED STATES ATTORNEY , Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4160 Doc: 22 Filed: 01/14/2022 Pg: 1 of 32 PER CURIAM: Marquan Diontae Preston appeal s his conviction s and sentence imposed following his guilty plea to possession with the intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), and possession of a machinegun, in violation of 18 U.S.C. §§ 922(o), 924 (a)(2)

. Appellate counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), concluding that there are no meritorious grounds for appeal but questioning whether Preston’s trial counsel was constitutionally in effective

. The Government has moved to dismiss the appeal based on the waiver of appellate rights
in Preston’s plea agreement. We affirm in part and dismiss in part. We review de novo the validity of an appeal waiver. United States v. Copeland , 707 F.3d 522, 528 (4th Cir. 2013). We generally will enforce a waiver if it is valid and the issue being appealed falls with in the scope of the waiver. United States v. Dillard , 891 F.3d 151, 156 (4th Cir. 2018). A defendant’s waiver is valid if he “knowingly and intelligently agreed to it.” United States v. Manigan , 592 F.3d 621, 627 (4th Cir. 2010). After review of the ple a agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that Preston knowingly and voluntarily waived his right to appeal his conviction s and sentence, except as to claims of ineffective assistance of counsel and prosecutorial miscon duct. Thus, we conclude that the waiver is valid and enforceable. Preston asserts that his trial counsel was constitutionally ineffective because s he failed to properly advise Preston of his sentencing exposure before he entered into the plea agreement. This claim falls outside the scope of Preston’s appellate waiver. However, we do not consider ineffective assistance claims on direct appeal “[u]nl ess an attorney’s USCA4 Appeal: 21-4160 Doc: 22 Filed: 01/14/2022 Pg: 2 of 33 ineffectiveness conclusively appears on the face of the record.” United States v. Faulls , 821 F.3d 502, 507

- 08 (4th Cir. 2016). We conclude that ineffective assistance of counsel does not conclusively appear on the face of the record. We therefore decline to address this claim on direct appeal. This claim “should be raised, if at all, in a 28 U.S.C. § 2255 motion.” Id. at 508. In accordance with Anders , we have reviewed the entire record in this case and have found no meritorious grounds for appeal that fall outside the scope of the waiver

. Accordingly, we grant the Government’s motion to dismiss the appeal as to the claims foreclosed by the waiver and affirm as to the remainder of the appeal. This court requires that counsel inform Preston , in writing, of the right to petition the Supreme Court of the United States for further review. If Preston requests that a petition be filed, but counsel believe s 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 Preston

. We dispense with oral argument because the facts and legal c ontentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART USCA4 Appeal: 21-4160 Doc: 22 Filed: 01/14/2022 Pg: 3 of 3