UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4354

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID MOORE,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Frank W. Volk, District Judge. (5:18-cr-00041-1)

Submitted: February 26, 2021 Decided: March 8, 2021

Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West Virginia, for Appellant. Timothy Doyle Boggess, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David Moore pled guilty, pursuant to a written plea agreement, to being a felon in

possession of a firearm, in violation of

(g)(1), 924(a)(2). The district

court sentenced Moore to 46 months’ imprisonment. On appeal, Moore argues that the

sentencing court erred by applying an enhancement for wanton endangerment, U.S.

Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2018), and that his trial counsel provided

ineffective assistance by failing to adequately object to that enhancement. The

Government has moved to dismiss the appeal. We grant the Government’s motion.

An appeal waiver “preclude[s] a defendant from appealing a specific issue if the

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

of the waiver.” United States v. Archie,

(4th Cir. 2014). We review

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

(4th Cir. 2013). A defendant validly waives his appeal rights if he agreed to the waiver

“knowingly and intelligently.” United States v. Manigan,

(4th Cir.

2010). “To determine whether a waiver is knowing and intelligent, we examine 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. Thornsbury,

(4th Cir. 2012) (internal quotation marks

omitted). “Generally, if a district court questions a defendant regarding the waiver of

appellate rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the

defendant understood the full significance of the waiver, the waiver is valid.”

2 Our review of the Rule 11 colloquy and the plea agreement confirms that Moore

knowingly and voluntarily waived the right to appeal his sentence. Moore’s claim that the

district court improperly applied an enhancement for wanton endangerment falls squarely

within the scope of the waiver. We therefore enforce the appellate waiver with respect to

that issue.

Moore’s ineffective assistance of counsel claims, however, fall outside the scope of

Moore’s appeal waiver. Unless an attorney’s ineffectiveness conclusively appears on the

face of the record, ineffective assistance claims are not generally addressed on direct

appeal. United States v. Faulls,

(4th Cir. 2016). Instead, such claims

should be raised in a motion brought pursuant to

, in order to permit

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

, 216 n.1 (4th

Cir. 2010). Ineffectiveness of counsel does not conclusively appear on the face of the

record before us. Therefore, Moore should raise this claim, if at all, in a § 2255 motion.

Faulls,

.

We therefore grant the Government’s motion and dismiss this appeal. 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