UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-7401


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM HARRY MEYER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:07-cr-01181-TLW-1)


Submitted:   March 27, 2012                 Decided:   April 2, 2012


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part and dismissed in part by unpublished per curiam
opinion.


Daniel A. Juengel, FRANK, JUENGEL & RADEFELD, P.C., St. Louis,
Missouri, for Appellant.   William E. Day, II, Assistant United
States Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            William Harry Meyer pled guilty, pursuant to a written

plea    agreement,    to   transferring     obscene     material       to   a   minor

under the age of sixteen, in violation of 18 U.S.C. § 1470

(2000).       The    district   court    imposed       the    statutory     maximum

sentence of 120 months’ imprisonment.              On appeal, Meyer argues

that: (1) his trial counsel was constitutionally ineffective;

(2) the appellate waiver in his plea agreement is unenforceable;

and (3) the district court abused its discretion by imposing an

unreasonable sentence.

            The Government seeks to enforce the appellate waiver

provision of the plea agreement and has moved to dismiss Meyer’s

appeal.     In response, Meyer asserts that the appellate waiver

does not preclude claims of ineffective assistance of counsel,

the    Government    waived   assertion     of   the    waiver    by   failing    to

object when the district court instructed Meyer that he had a

right to appeal after imposing his sentence, and Meyer did not

knowingly and voluntarily waive his right to appeal.

            A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006).                  United States v.

Wiggins, 

, 53 (4th Cir. 1990).                    An appellate waiver

must be “the result of a knowing and intelligent decision to

forgo the right to appeal.”             United States v. Broughton-Jones,

, 1146 (4th Cir. 1995) (internal quotation marks and

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citation omitted).            We review de novo whether a defendant has

effectively waived his right to appeal.                   United States v. Marin,

, 496 (4th Cir. 1992).

            To     determine        whether        a   waiver        is   knowing      and

intelligent,       this       court     examines        “the     totality       of     the

circumstances,      including         the    experience        and    conduct     of   the

accused, as well as the accused’s educational background and

familiarity      with    the    terms       of   the   plea    agreement.”         United

States v. General, 

, 400 (4th Cir. 2002) (internal

quotation marks and citation omitted).                       Generally, if a court

fully questions a defendant regarding the waiver of his right to

appeal during the Rule 11 colloquy, the waiver is both valid and

enforceable.       United States v. Johnson, 

, 151 (4th

Cir. 2005).        However, this court will “refuse to enforce an

otherwise valid waiver if to do so would result in a miscarriage

of     justice.”        

    marks      and   citation

omitted).

            Although the district court mistakenly told Meyer “You

do have the right to appeal” after imposing his sentence, this

statement does not nullify the valid waiver contained in his

plea     agreement.           The   court        specifically        questioned      Meyer

regarding the waiver provision numerous times during the Fed. R.

Crim. P. 11 plea colloquy.                  Meyer, a fifty-seven-year-old man

with a bachelor’s degree, indicated that he had reviewed the

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appellate waiver with his attorney, understood it, and did not

have any questions.             Thereafter, the court permitted Meyer’s

counsel additional time to discuss the waiver provision with his

client,    and     questioned        whether      Meyer      understood    the    waiver

provision a second time.               Meyer responded that he understood.

We    therefore    conclude     that     Meyer      knowingly       and   intelligently

waived his right to appeal his sentence.                       Accordingly, Meyer’s

challenge to his sentence falls within the scope of the waiver

and may not be reviewed by this court.

            Meyer    also      asserts       that    his    trial    counsel     provided

ineffective       assistance     by    failing       to    ascertain      his    relevant

conduct,    failing      to   explain       the     effect    his   relevant      conduct

would have on his Guidelines range, and failing to preserve his

right to appeal his sentence.                 Claims of ineffective assistance

of    counsel     fall    outside     the     scope    of     the   appellate      waiver

provision, and we deny the motion to dismiss as to these claims.

However, as a general rule, claims of ineffective assistance of

counsel should be raised in a 28 U.S.C.A. § 2255 (West Supp.

2010) motion rather than on direct appeal, unless the appellate

record conclusively demonstrates ineffective assistance.                           United

States v. Benton, 

, 435 (4th Cir. 2008).                              Because

the     record     here       does     not       establish      that      counsel     was

constitutionally ineffective, these claims are not subject to

review on direct appeal.

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              Accordingly,    we   grant      the   Government’s      motion     to

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

Meyer’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;
                                                              DISMISSED IN PART




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