UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4392

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DELANIO VICK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Arenda L. Wright Allen, District Judge. (4:16-cr-00088-MSD-LRL-1)

Submitted: January 17, 2019 Decided: January 22, 2019

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

Dismissed by unpublished per curiam opinion.

Theresa A. Kennedy, Richmond, Virginia, for Appellant. Kaitlin Gratton Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Delanio Vick appeals his conviction and 84-month sentence entered following his

guilty plea to conspiracy to commit mail, wire, and bank fraud and aggravated identity

theft. Counsel has filed a brief pursuant to Anders v. California,

(1967),

acknowledging that Vick waived his right to appeal and questioning whether Vick

received ineffective assistance of counsel. Vick was advised of his right to file a pro se

supplemental brief, but has not done so. The Government has moved to dismiss the

appeal as barred by Vick’s waiver of the right to appeal included in the plea agreement.

We grant the motion and dismiss the appeal.

We review de novo the validity of an appeal waiver. United States v. Copeland,

(4th Cir. 2013). We generally will enforce a waiver “if the record

establishes that the waiver is valid and that the issue being appealed is within the scope of

the waiver.” United States v. Thornsbury,

(4th Cir. 2012) (internal

quotation marks omitted). A defendant’s waiver is valid if he “knowingly and

intelligently agreed to it.” United States v. Manigan,

(4th Cir. 2010).

Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11

hearing, we conclude that Vick knowingly and voluntarily waived his right to appeal his

conviction and sentence, except as to claims of ineffective assistance of counsel. Thus,

we conclude that the waiver is valid and enforceable.

Although claims of ineffective assistance of counsel are outside the waiver, we

conclude that ineffective assistance of counsel does not conclusively appear on the face

of the record. See United States v. Baldovinos,

(4th Cir. 2006).

2 Accordingly, Vick’s ineffective assistance claim is not cognizable on direct appeal.

United States v. Benton,

(4th Cir. 2008). Instead, this claim should be

pursued, if at all, in a motion brought pursuant to

(2012), in order to

permit sufficient development of the record. United States v. Baptiste,

, 216

n.1 (4th Cir. 2010).

In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious issues for appeal outside the scope of the waiver. We

therefore grant the Government’s motion to dismiss the appeal. This court requires that

counsel inform Vick, in writing, of the right to petition the Supreme Court of the United

States for further review. If Vick 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 Vick. We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid

the decisional process.

DISMISSED

3