UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4541

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEROME FRIPP,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00275-RBH-1)

Submitted: December 28, 2009 Decided: January 25, 2010

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

D. Craig Brown, Florence, South Carolina, for Appellant. Rose Mary Sheppard Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gerome Fripp pled guilty to using and carrying a

firearm during a drug trafficking offense, which resulted in the

murder of Vincent Wilson, and aiding and abetting another person

in the crime, in violation of

, 924(c)(1)(A), (j)

(2006). The district court sentenced Fripp to twenty-five years

of imprisonment, based upon the parties’ stipulation in the plea

agreement. See Fed. R. Crim. P. 11(c)(1)(C). On appeal,

counsel has filed an Anders ∗ brief, stating that there are no

meritorious issues for appeal but suggesting that the district

court failed to comply with Fed. R. Crim. P. 11 in accepting

Fripp’s guilty plea. Fripp has filed a pro se supplemental

brief challenging the voluntariness of his guilty plea and

asserting that counsel provided ineffective assistance. The

Government has moved to dismiss the appeal based upon Fripp’s

waiver of appellate rights. We affirm in part and dismiss in

part.

Although counsel identifies no error in the plea

colloquy, Fripp asserts in his pro se supplemental brief that he

did not knowingly and voluntarily enter his guilty plea. Our

review of the record leads us to conclude that the district

court ensured Fripp’s guilty plea was knowing and voluntary and

∗ Anders v. California,

(1967).

2 supported by a sufficient factual basis. See United States v.

DeFusco,

(4th Cir. 1991). Thus,

Fripp’s claim that his guilty plea was involuntary is belied by

his sworn statements at the plea hearing. See Blackledge v.

Allison,

(1977). Moreover, the district court

substantially complied with Rule 11 in accepting Fripp’s plea,

and the court’s failure to inform Fripp that “the agreed

disposition will be included in the judgment,” see Fed. R. Crim.

P. 11(c)(4), did not amount to plain error. See United

States v. Martinez,

(4th Cir. 2002) (providing

standard of review).

Turning to the Government’s assertion that Fripp

waived the right to appeal his conviction and sentence, a

defendant may waive the right to appeal if that waiver is

knowing and intelligent. United States v. Poindexter,

(4th Cir. 2007). Generally, if the district 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,

(4th

Cir. 2005); United States v. Wessells,

(4th

Cir. 1991). Our de novo review of the record convinces us that

the waiver-of-appellate-rights provision in the plea agreement

is valid and enforceable. See United States v. Blick,

(4th Cir. 2005) (stating standard of review).

3 With regard to the scope of the waiver, Fripp’s

challenge to the voluntariness of his guilty plea is not barred

by the waiver provision. We therefore deny the Government’s

motion to dismiss in part and affirm the conviction on the

ground that Fripp voluntarily entered his guilty plea. Although

Fripp does not challenge his sentence on appeal, any sentencing

claim that would have been revealed by our review pursuant to

Anders is barred by the waiver-of-appellate-rights provision in

the plea agreement. We therefore grant the Government’s motion

to dismiss in part and dismiss this portion of the appeal.

Finally, Fripp asserts in his supplemental pro se

brief that counsel provided ineffective assistance. Because

this claim falls within the exception to the waiver-of-

appellate-rights provision in the plea agreement, Fripp may

raise it on appeal. However, “[i]neffective assistance claims

are generally not cognizable on direct appeal . . . unless it

conclusively appears from the record that defense counsel did

not provide effective representation.” United States v. Benton,

(4th Cir. 2008). Counsel’s ineffectiveness

does not conclusively appear from the record. We therefore find

that Fripp’s ineffective assistance claims are not cognizable on

direct appeal.

In accordance with Anders, we have thoroughly examined

the entire record for any potentially meritorious issues not

4 covered by the waiver and have found none. We therefore affirm

Fripp’s conviction and dismiss the appeal of his sentence. This

court requires that counsel inform his client, in writing, of

the right to petition the Supreme Court of the United States for

further review. If the client requests that a petition be

filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to

withdraw from representation. Counsel’s motion must state that

a copy thereof was served on the client. 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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