UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4420

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

XAVIER SHAMAAR JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:17-cr-00023-FL-1)

Submitted: March 1, 2019 Decided: March 11, 2019

Before WYNN and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

James C. White, Michelle M. Walker, PARRY TYNDALL WHITE, Chapel Hill, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Xavier Shamaar Johnson seeks to appeal his convictions and 197-month sentence,

imposed following his guilty plea, pursuant to a plea agreement to possession with the

intent to distribute quantities of marijuana, heroin, cocaine, and cocaine base, in violation

of

(a)(1), (b)(1)(C) (2012), possession of a firearm in furtherance of a

drug trafficking crime, in violation of

(c)(1)(A)(i) (2012), and possession

of firearms by a felon in violation of

(g)(1), 924(a)(2) (2012).

Johnson’s attorney has filed a brief pursuant to Anders v. California,

(1967), stating that there are no meritorious issues for appeal, but questioning whether

Johnson received ineffective assistance of counsel during the plea process and whether

the district court erred in calculating Johnson’s advisory Guideline range. Johnson did

not file a pro se supplemental brief. The Government has moved to dismiss the appeal on

the basis of the appellate waiver provision in Johnson’s plea agreement. We affirm in

part and dismiss in part, and we deny Johnson’s motion to reconsider the order

suspending the briefing schedule.

Johnson’s plea agreement included an appellate waiver, in which he waived all

rights to appeal the conviction and sentence, excepting a sentence in excess of the

advisory Guidelines range, or on grounds of ineffective assistance of counsel or

prosecutorial misconduct not known to Johnson at the time of the plea. “We review the

validity of an appellate waiver de novo.” United States v. McCoy,

(4th

Cir.), cert. denied,

(2018). Generally, if the district court fully questions a

defendant regarding the waiver of the right to appeal during the Fed. R. Crim. P. 11

2 colloquy, the waiver is both valid and enforceable. United States v. Thornsbury,

(4th Cir. 2012).

Our review of the record leads us to conclude that Johnson knowingly and

intelligently waived the right to appeal his conviction and sentence. Johnson’s challenges

to the district court’s calculation of the advisory Guidelines range fall squarely within the

scope of the waiver. Accordingly, we dismiss the appeal as to these claims.

Johnson’s claim of ineffective assistance of counsel is outside of the scope of the

appeal waiver. This court will not generally review claims of ineffective assistance of

counsel on direct appeal, however, unless the attorney’s ineffectiveness appears

conclusively on the face of the record. United States v. Faulls,

(4th

Cir. 2016). We are not persuaded that Johnson’s counsel’s alleged ineffectiveness

appears conclusively on the face of the record. Thus, any such claim may be raised, if at

all, in a motion pursuant to

(2012).

In accordance with Anders, we have thoroughly reviewed the record for any other

potentially meritorious issues outside the scope of Johnson’s appeal waiver and have

found none. Therefore, we affirm in part as to any potential claims not foreclosed by the

waiver provision, and dismiss the appeal in part as to those claims encompassed by the

waiver. This court requires that counsel inform Johnson, in writing, of the right to

petition the Supreme Court of the United States for further review. If Johnson 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 Johnson.

3 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.

AFFIRMED IN PART, DISMISSED IN PART

4