FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 7, 2010

JOHN LEY

ACTING CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11746

Non-Argument Calendar

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D. C. Docket No. 08-80034-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES THOMAS WITHROW,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(January 7, 2010)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

James Thomas Withrow appeals his 144-month sentence for conspiracy to
possess with intent to distribute at least 50 grams of crack cocaine, in violation of

21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A). Withrow raises three arguments on

appeal, namely that (1) his sentence appeal waiver is invalid and unenforceable

because he did not enter it knowingly; (2) the district court clearly erred in

enhancing his offense level by two levels, per U.S.S.G. § 3B1.1, after finding that

he assumed a managerial role in the offense; and (3) he received ineffective

assistance of counsel.

I. & II.

Withrow argues that his sentence appeal waiver should not be enforced

because (1) at the time he entered it, he could not have known that his appointed

counsel would provide ineffective assistance; and (2) the agreement was voidable

at the request of the government.

We review the validity of a sentence appeal waiver provision of a plea

agreement de novo. United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir.

2001). A sentence appeal waiver must be made knowingly and voluntarily and is

valid if the government shows either that: (1) the district court specifically

questioned the defendant about the waiver; or (2) the record makes clear that the

defendant otherwise understood the full significance of the waiver. United States

v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). A sentence appeal waiver

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includes the waiver of the right to appeal difficult or debatable legal issues or even

blatant error. United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).

Despite Withrow’s arguments to the contrary, the sentence appeal waiver in

his plea agreement is valid and enforceable because the district court questioned

Withrow about the sentence appeal waiver and Withrow confirmed his

understanding of the waiver. Because the waiver is valid and enforceable,

Withrow cannot contest the district court’s application of a two-level,

aggravating-role enhancement, per U.S.S.G. § 3B1.1. Accordingly, we dismiss the

appeal to the extent Withrow challenges the validity of his sentence appeal waiver

and the district court’s application of the two-level sentence enhancement, per

§ 3B1.1. Because the government concedes that the sentence appeal waiver has no

application to ineffective-assistance-of-counsel claims, we now consider

Withrow’s ineffective-assistance argument.

III.

Withrow alleges that his trial counsel rendered ineffective assistance when

she (a) lost credibility after she was admonished by the district court to take greater

care in the representations she made in her pleadings; (b) failed to draft a proposed

mental health evaluation as instructed by the district court; (c) refused to continue

participating in Withrow’s debriefing with law enforcement agents; (d) failed to

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give Withrow a copy of his presentence investigation report (“PSI”) before

sentencing; (e) falsely represented to the district court that she did not serve as

counsel during the change of plea hearing; (f) failed to explain during sentencing

why his mental deficiencies warranted a lesser sentence; and (g) failed to argue

during sentencing that the conditions of his confinement warranted a lesser

sentence.

“We will not generally consider claims of ineffective assistance of counsel

raised on direct appeal where the district court did not entertain the claim nor

develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002) (quotation omitted).

First, because the trial record does not contain sufficient evidence to

evaluate whether trial counsel’s failure to argue that Withrow’s conditions of

confinement warranted a lesser sentence was deficient or resulted in prejudice, we

decline to consider the allegation, and, as to this allegation, we affirm without

prejudice to filing a petition for collateral review. We consider Withrow’s

remaining allegations of ineffective assistance because the record is sufficient to

evaluate their merit. Withrow’s allegations that his counsel failed to file a

proposed order for a mental health evaluation, falsely represented that she did not

act as counsel during the plea hearing, failed to provide a copy of the PSI before

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sentencing, and failed to argue at sentencing that his mental deficiencies warranted

a lesser sentence are contradicted by the record, and thus, do not arise to ineffective

assistance. As to Withrow’s allegations that his counsel lacked credibility with the

district court and refused to continue her participation in a government debriefing,

even assuming that counsel’s conduct was constitutionally deficient, Withrow has

made no showing that, but for these alleged deficiencies, the outcome of his

proceedings would have been different. Accordingly, we conclude that Withrow’s

reviewable allegations do not arise to ineffective assistance, and we affirm in this

regard.

Conclusion

Based on our review of the record and the parties’ briefs, Withrow’s

sentence is dismissed in part, affirmed without prejudice to collateral review in part

and affirmed in part.

DISMISSED in part, AFFIRMED without prejudice in part, and

AFFIRMED in part.

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