UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                No. 01-4665
RONY JOSEPH, a/k/a Joseph Rony,
a/k/a Castro,
               Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Eastern District of North Carolina, at Wilmington.
                James C. Fox, Senior District Judge.
                             (CR-00-118)

                      Submitted: June 11, 2002

                      Decided: June 28, 2002

 Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.



Dismissed in part and affirmed in part by unpublished per curiam
opinion.


                            COUNSEL

Robert J. McAfee, MCCOTTER, MCAFEE & ASHTON, P.L.L.C.,
New Bern, North Carolina, for Appellant. J. Frank Bradsher, Kenneth
Fitzgerald Whitted, OFFICE OF THE UNITED STATES ATTOR-
NEY, Raleigh, North Carolina, for Appellee.
2                       UNITED STATES v. JOSEPH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Rony Joseph pled guilty pursuant to a plea agreement to conspiracy
to possess with intent to distribute at least fifty grams of cocaine base,
in violation of 21 U.S.C.A. § 846 (West 1999). He was sentenced to
300 months imprisonment, to be followed by five years of supervised
release.

   The plea agreement contained a waiver of appellate review, except-
ing the right to appeal from an upward departure from the guideline
range. Nevertheless, Joseph noted an appeal and raises two issues: (1)
the district court erred by denying Joseph a sentence reduction under
U.S. Sentencing Guidelines Manual § 3E1.1 (2000); and (2) counsel
rendered constitutionally ineffective assistance. The Government now
moves to dismiss the appeal in part and for summary affirmance in
part. Joseph opposes the motion.

   A waiver of appeal provision in a valid plea agreement is enforce-
able if it resulted from a knowing and intelligent decision to forgo an
appeal. United States v. Attar, 

, 731 (4th Cir. 1994);
United States v. Wiggins, 

, 53 (4th Cir. 1990). This Court
reviews de novo the validity of a waiver. United States v. Brown, 

, 402-03 (4th Cir. 2000). Joseph does not assert that his
waiver was not knowing and intelligent; rather, he argues that the dis-
trict court’s refusal to grant a downward departure is equivalent to
making an upward departure from the guideline range, and thus is not
included in the waiver. This argument is patently without merit. The
district court imposed a sentence within the guideline range; the
court’s refusal to depart downward does not amount to an upward
departure. Therefore, we grant the Government’s motion to dismiss
this claim as waived.

  Joseph also argues that counsel rendered ineffective assistance. To
succeed on a claim of ineffective assistance of counsel, a defendant
                       UNITED STATES v. JOSEPH                       3
must show that his counsel’s performance fell below an objective
standard of reasonableness and that counsel’s deficient performance
was prejudicial. Strickland v. Washington, 

, 687-88
(1984). Claims of ineffective assistance of counsel are generally not
cognizable on appeal. United States v. King, 

, 295 (4th
Cir. 1997). Such claims must ordinarily be pursued in a motion under
28 U.S.C.A. § 2255 (West Supp. 2001), to allow for adequate devel-
opment of the record. United States v. Hoyle, 

, 418 (4th
Cir. 1994). An exception to this rule applies when the record on direct
appeal conclusively establishes that the defendant did not receive con-
stitutionally sufficient assistance of counsel. 

.
The record in this case does not conclusively establish that Joseph
received constitutionally inadequate counsel. Therefore, this claim
must be raised in a § 2255 motion.

  We grant the Government’s motion to dismiss in part and to sum-
marily affirm Joseph’s conviction. 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