UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4852

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRYAN KEITH KENT, a/k/a “B”, a/k/a Big Bryan,

a/k/a Brian,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Martinsburg. W. Craig Broadwater,

District Judge. (3:05-cr-00075-WCB)

Submitted: April 25, 2007 Decided: May 24, 2007

Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam

opinion.

Robert E. Barrat, Martinsburg, West Virginia, for Appellant.

Thomas Oliver Mucklow, Assistant United States Attorney,

Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

Anders v. California, 386 U.S. 738 (1967).

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PER CURIAM:

Bryan Keith Kent appeals his conviction and 247-month

sentence imposed after he pled guilty, pursuant to a plea

agreement, to possession with intent to distribute 44.72 grams of

crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000). On

appeal, counsel has filed an Anders1 brief, stating there are no

meritorious issues for appeal but suggesting that counsel provided

ineffective assistance, that the district court erred in

designating Kent as a career offender, and that Kent’s sentence is

too long. The Government has moved to dismiss the appeal,

asserting that Kent validly waived the right to appeal his sentence

in the plea agreement. We affirm in part and dismiss in part.

A defendant may waive the right to appeal if that waiver

is knowing and intelligent. United States v. Blick, 408 F.3d 162,

169 (4th Cir. 2005). Generally, if the district court fully

questions a defendant regarding the waiver of his right to appeal

during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid

and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th

Cir.), cert. denied, 126 S. Ct. 461 (2005); United States v.

Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). The question of

whether a defendant validly waived his right to appeal is a

question of law that we review de novo. Blick, 408 F.3d at 168.
2

We decline to review Kent’s ineffective assistance of counsel

claim on direct appeal as counsel’s ineffectiveness does not

conclusively appear from the record. See United States v.

Baldovinos, 434 F.3d 233, 239 (4th Cir.) (providing standard),

cert. denied, 126 S. Ct. 1407 (2006). 

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Our review of the record leads us to conclude that Kent

knowingly and voluntarily waived the right to appeal his sentence.

Moreover, the sentencing issues raised on appeal fall within the

scope of the waiver. We therefore grant, in part, the Government’s

motion to dismiss and dismiss this portion of the appeal.

Although the waiver provision in the plea agreement

precludes our review of the sentence, the waiver does not prevent

our review of any errors in Kent’s conviction that may be revealed

by our review pursuant to Anders.2 Our review of the transcript of

the plea colloquy leads us to conclude that the district court

fully complied with the mandates of Rule 11 in accepting Kent’s

guilty plea. Thus, we deny, in part, the Government’s motion to

dismiss and affirm the conviction.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues not

covered by the waiver. We therefore affirm Kent’s conviction and

dismiss the appeal of his sentence. This court requires that

counsel inform his client, in writing, of the right to petition the

Supreme Court of the United States for further review. If the

client requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in this
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court for leave to withdraw from representation. Counsel’s motion

must state that a copy thereof was served on the client. 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.

AFFIRMED IN PART AND DISMISSED IN PART