UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4485

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FERNANDO MIGUEL NUNEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever, III, 

District Judge. (5:08-cr-00262-D-1)

Submitted: August 31, 2010 Decided: September 20, 2010

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Dismissed in part, affirmed in part by unpublished per curiam 

opinion.

Fernando Miguel Nunez, Appellant Pro Se. Anne Margaret Hayes, 

Assistant United States Attorney, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Fernando Miguel Nunez appeals his conviction and 

within-guidelines 365-month sentence imposed after he waived 

indictment and pled guilty, pursuant to a written plea 

agreement, to a criminal information charging possession with 

intent to distribute more than 100 kilograms of marijuana, in 

violation of 21 U.S.C. § 841(a)(1) (2006). After obtaining 

leave to proceed on appeal pro se, Nunez filed a brief, claiming 

his sentence is unreasonable. The Government filed a motion to 

dismiss based on an appeal waiver provision in the plea 

agreement. Nunez filed a response to the motion to dismiss, 

presenting for the first time a claim that ineffective 

assistance of counsel prevented him from knowingly and 

intelligently waiving his right to appeal and places his appeal 

outside of the scope of the waiver. 

A defendant may, in a valid plea agreement, waive the 

right to appeal under 18 U.S.C. § 3742 (2006). United States v. 

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). We review the 

validity of an appellate waiver de novo, United States v. Brown, 

232 F.3d 399, 402-03 (4th Cir. 2000), and will uphold a waiver 

of appellate rights if the waiver is valid and the issue being 

appealed is covered by the waiver. United States v. Blick, 408 

F.3d 162, 168 (4th Cir. 2005). 
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The issues raised by Nunez in his pro se brief are 

encompassed by the scope of the waiver provision in which Nunez 

agreed to 

waive knowingly and expressly the right to appeal 

whatever sentence is imposed on any ground, . . . 

reserving only the right to appeal from a sentence in 

excess of the advisory Guideline range that is 

established at sentencing . . . , excepting the 

Defendant’s right to appeal based upon grounds of 

ineffective assistance of counsel and prosecutorial 

misconduct not known to the Defendant at the time of 

the Defendant’s guilty plea. 

Nunez’s claims of error in sentencing are foreclosed by the 

express terms of the waiver, and we dismiss the appeal as to 

those claims.

We conclude that Nunez’s claim of ineffective 

assistance of counsel is not cognizable on direct appeal as 

ineffective assistance does not conclusively appear on the 

record. United States v. Richardson, 195 F.3d 192, 198 (4th 

Cir. 1999). We therefore affirm Nunez’s conviction and dismiss 

the appeal to extent Nunez seeks to challenge his sentence. 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