UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4115

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICKY NELSON SIMPSON, a/k/a Bossman,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Elizabeth City. James C. Dever, 

III, Chief District Judge. (2:14-cr-00007-D-1)

Submitted: October 20, 2015 Decided: October 22, 2015

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam 

opinion.

Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina, 

for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES 

ATTORNEY, Jennifer P. May-Parker, Assistant United States 

Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Ricky Nelson Simpson appeals the 96-month, below-Guidelines 

sentence imposed after he pled guilty, pursuant to a plea 

agreement, to one count of conspiracy to distribute and possess 

with intent to distribute 28 grams or more of cocaine base and 

500 grams or more of cocaine, in violation of 21 U.S.C.

§§ 841(b)(1)(B), 846 (2012). Counsel has filed a brief, 

pursuant to Anders v. California, 386 U.S. 738 (1967), in which 

she challenges the substantive reasonableness of Simpson’s 

sentence, but recognizes that Simpson waived his right to appeal 

his sentence in his plea agreement. Simpson has filed a pro se 

supplemental brief asserting that counsel was ineffective, 

thereby resulting in the denial of his due process rights. The 

Government has filed a motion to dismiss the appeal based on the 

appellate waiver in Simpson’s 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. See United States v. Poindexter, 492 

F.3d 263, 270 (4th Cir. 2007). Our independent review of the 

record supports the conclusion that Simpson voluntarily and 

knowingly waived his right to appeal his conviction and 

sentence. Thus, we conclude that the waiver is valid and 

enforceable.
3

However, even a valid waiver does not waive all appellate 

claims. Specifically, a valid appeal waiver does not preclude a 

challenge to a sentence on the ground that it exceeds the 

statutory maximum or is based on a constitutionally 

impermissible factor such as race, arises from the denial of a 

motion to withdraw a guilty plea based on ineffective assistance 

of counsel, or relates to claims concerning a violation of the 

Sixth Amendment right to counsel in proceedings following the 

guilty plea. See United States v. Johnson, 410 F.3d 137, 151 

(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th 

Cir. 1993). Moreover, the appellate waiver in Simpson’s plea 

agreement did not waive: (1) any sentencing challenges he may 

have if his sentence was in excess of the applicable advisory 

Guidelines range established at sentencing; or (2) ineffective 

assistance of counsel or prosecutorial misconduct claims not 

known to Simpson at the time of his guilty plea. Simpson’s 

sentence is below the Guidelines range established at sentencing 

and, thus, counsel’s claim is squarely foreclosed by the 

appellate waiver. Accordingly, we grant the Government’s motion 

to dismiss the appeal, in part. 
4

In accordance with Anders, we have reviewed the record for 

any potentially meritorious, unwaived issues,* and we have found 

none. We therefore dismiss the appeal in part and affirm in 

part. This court requires that counsel inform Simpson, in 

writing, of his right to petition the Supreme Court of the

United States for further review. If Simpson requests that a 

petition be filed, but counsel believes that such a petition 

would be frivolous, then counsel may move this court for leave 

to withdraw from representation. Counsel’s motion must state 

that a copy thereof was served on Simpson. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid in the decisional process.

AFFIRMED IN PART;

DISMISSED IN PART

 * To the extent Simpson suggests that counsel provided 

ineffective assistance, we conclude that ineffective assistance 

does not conclusively appear on the record. See United States 

v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).