UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4013

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TOBY PAINTER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. James C. Dever III, District Judge. (2:19-cr-00019-D-1)

Submitted: October 28, 2021 Decided: January 13, 2022

Before GREGORY, Chief Judge, MOTZ, Circuit Judge, and SHEDD, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Sharon Leigh Smith, UNTI & SMITH, Raleigh, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:

Toby Painter appeals his conviction and 240-month sentence imposed following his

guilty plea to enticement of a minor, in violation of

(b). Appellate counsel

has filed a brief pursuant to Anders v. California,

(1967), questioning whether

the district court correctly calculated Painter’s advisory Sentencing Guidelines range and

whether sentencing counsel rendered ineffective assistance by failing to raise certain

arguments during the sentencing hearing. Painter did not file a pro se supplemental brief

despite being notified of his right to do so. The Government moves to dismiss this appeal

as barred by the appellate waiver contained in Painter’s plea agreement. We affirm in part

and dismiss in part.

Where, as here, the Government seeks to enforce an appeal waiver and Painter has

not alleged a breach of the plea agreement, we will enforce the waiver if it is valid and the

issue raised on appeal falls within the scope of the waiver. United States v. Soloff,

(4th Cir. 2021). Painter does not contest that he knowingly and intelligently

waived his right to appeal, see

and our review of the plea hearing leads us to conclude

that Painter’s guilty plea was knowing and voluntary, and the waiver is valid and

enforceable. Painter’s challenge to his sentence falls squarely within the waiver’s scope.

We therefore grant the Government’s motion to dismiss that portion of the appeal.

Painter’s ineffective assistance claim, on the other hand, falls outside the scope of

the appellate waiver provision. However, we will not consider ineffective assistance

claims on direct appeal “[u]nless an attorney’s ineffectiveness conclusively appears on the

face of the record.” United States v. Faulls,

(4th Cir. 2016). Based

2 on our review of the present record, we conclude that ineffective assistance of counsel is

not apparent on the face of the record. We therefore decline to review this claim on direct

appeal and also dismiss this portion of the appeal. * Finally, we have reviewed the record

in accordance with Anders and have identified no potentially meritorious issues that would

fall outside the scope of the waiver. Accordingly, we grant the Government’s motion to

dismiss as to the claims foreclosed by the appellate waiver, dismiss the appeal as to

Painter’s claim of ineffective assistance of counsel, and affirm the remainder of the district

court’s judgment.

This court requires that counsel inform Painter, in writing, of the right to petition

the Supreme Court of the United States for further review. If Painter 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 Painter. 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

* This claim should be raised, if at all, in a motion brought pursuant to

to permit sufficient development of the record. United States v. Jordan,

, 163 n.1 (4th Cir. 2020), cert. denied,

(2021).

3