UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4626
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE ANTONIO NIEVES, a/k/a Antonio Perez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-42)
Submitted: April 29, 2004 Decided: May 3, 2004
Before LUTTIG, WILLIAMS, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Robert
A.J. Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Antonio Nieves pled guilty to possession of 422.8
grams of cocaine base (crack) with intent to distribute, 21
U.S.C.A. § 841(a), (b)(1)(A) (West 1999 & Supp. 2003) (Count One),
and to possession of a firearm in furtherance of a drug trafficking
crime, 18 U.S.C. § 924(c)(1)(A) (2000). His plea agreement
provided that he waived his right to appeal his sentence “on any
ground, including any appeal right conferred by Title 18, United
States Code, Section 3742(a),” excepting only claims of
prosecutorial misconduct, ineffective assistance of counsel, a
sentence in excess of the statutory maximum, and a sentence based
on an unconstitutional factor. Nieves was sentenced to a term of
235 months imprisonment for the drug offense and a consecutive
five-year term for the § 924(c) offense. He now seeks to appeal
his sentence, contending that the district court erred in
determining the amount of crack for which he was responsible.
Based on Nieves’ waiver of his appeal right, we dismiss the appeal.
A defendant may waive his right to appeal if the waiver
is knowing and voluntary. United States v. Brown, 232 F.3d 399,
403 (4th Cir. 2000); United States v. Marin, 961 F.2d 493, 496 (4th
Cir. 1992). The record here discloses that Nieves’ waiver of his
appeal right was knowing and voluntary. He does not claim that any
of the exceptions apply.
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We therefore dismiss the appeal. 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.
DISMISSED
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