UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4651

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

TERRY LAMONT COBB, 

 Defendant - Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Greenville. Henry M. Herlong, Jr., Senior 

District Judge. (6:07-cr-01105-HMH-1) 

Submitted: October 19, 2009 Decided: November 4, 2009 

Before MOTZ, GREGORY, and AGEE, Circuit Judges. 

Affirmed in part and dismissed in part by unpublished per curiam 

opinion. 

Darren S. Haley, HALEY & PARKER, P.A., Greenville, South 

Carolina, for Appellant. W. Walter Wilkins, United States 

Attorney, A. Lance Crick, Jimmie Ewing, Assistant United States 

Attorneys, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Terry Lamont Cobb pled guilty, pursuant to a plea 

agreement, to possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. § 922(g)(1) (2006). He received a 120-

month sentence. On appeal, Cobb argues that the district court 

erred by improperly calculating his offense level and that 

counsel provided ineffective assistance at sentencing by failing 

to object to the improper calculation. 

 The Government has moved to dismiss the appeal, 

arguing it is barred by the appellate waiver included in the 

plea agreement. Cobb responds that because the district court 

failed to specifically question him about the appellate waiver 

during the Fed. R. Crim. P. 11 hearing, his guilty plea was not 

knowingly and voluntarily made. We disagree. 

 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, and will enforce the 

waiver if it is valid and the issue appealed is within the scope 

thereof. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 

2005). An appeal waiver is valid if the defendant knowingly and 

intelligently agreed to its terms. Id. at 169. “An appeal 

waiver is not knowingly or voluntarily made if the district 

court fails to specifically question the defendant concerning 

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the waiver provision . . . during the [Fed. R. Crim. P.] 11 

colloquy and the record indicates that the defendant did not 

otherwise understand the full significance of the waiver.” 

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) 

(internal quotation marks and citation omitted; emphasis added). 

 Ultimately, the validity of a plea waiver is 

“evaluated by reference to the totality of the circumstances.” 

United States v. General, 278 F.3d 389, 400 (4th Cir. 2002). We 

have found that, when an appellate waiver is “unambiguous 

and . . . plainly embodied in the plea agreement,” and the 

defendant is competent, represented by counsel, and questioned 

about whether he understands the provisions of the plea 

agreement, the defendant knowingly and intelligently waives his 

right to appeal his sentence, even where the waiver is not 

specifically mentioned at the Rule 11 hearing. General, 278 

F.3d at 400-01. 

 Here, the Rule 11 hearing established that Cobb was 

forty-one years old and had completed high school. The language 

of the appellate waiver is clear and unambiguous--Cobb “waive[d] 

the right to contest either the conviction or sentence in any 

direct appeal or other post-conviction action,” except for 

claims of ineffective assistance of counsel or prosecutorial 

misconduct. Cobb stated that he had adequate time to discuss 

his case with his attorney and that he was satisfied with 

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counsel’s representation. Because nothing in the record 

indicates that Cobb failed to understand the full significance 

of the appellate waiver, we find that Cobb’s decision to waive 

his right to appeal was both knowing and intelligent. Cobb’s 

claim that the district court improperly calculated his base 

offense level falls squarely within the broad scope of the 

appellate waiver and is barred from review on appeal. 

Accordingly, we grant the Government’s motion to dismiss in 

part, and dismiss the appeal to the extent Cobb challenges his 

sentence. 

 Cobb’s second issue, that counsel was ineffective for 

failing to challenge the calculation of his base offense level, 

is not within the scope of the waiver, and we deny the motion to 

dismiss as to this claim. However, claims of ineffective 

assistance of counsel generally are not cognizable on direct 

appeal. United States v. King, 119 F.3d 290, 295 (4th Cir. 

1997). Rather, to allow for adequate development of the record, 

a defendant must ordinarily bring such claims in a 28 U.S.C.A. 

§ 2255 (West Supp. 2009) motion, unless the appellate record 

conclusively establishes counsel’s ineffectiveness. See id.; 

United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). 

Because this appellate record does not conclusively establish 

that counsel was constitutionally ineffective in failing to 

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object to Cobb’s base offense level, the claim is not subject to 

review on direct appeal. 

 Accordingly, we grant the Government’s motion to 

dismiss in part and deny it in part. We dismiss the appeal of 

Cobb’s sentence, and otherwise affirm the judgment of the 

district court. 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