UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5088
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OMAR RONDELL WHITE, a/k/a Curley, a/k/a
Reecee,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-376-WDQ)
Submitted: October 5, 2005 Decided: November 1, 2005
Before LUTTIG and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Harry D. McKnett, Columbia, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Christopher J. Romano,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Omar Rondell White pled guilty to conspiracy to
distribute and possess with intent to distribute cocaine base and
cocaine in violation of 21 U.S.C. § 846 (2000), and was sentenced
to 151 months’ imprisonment.1 In his plea agreement, White agreed
to a comprehensive appellate waiver. On appeal, White raises one
issue in his brief: whether the court’s application of the career
offender enhancement violated Blakely v. Washington, 542 U.S. 296
(2004). The Government argues White’s appeal should be dismissed
based on the appellate waiver. White filed a reply brief, arguing
that he preserved his right to appeal under Blakely, because he
could not knowingly and intelligently waive a right that did not
exist at the time he entered into his plea agreement.
This court will uphold a waiver of appellate rights if
the waiver is valid and the issue being appealed is covered by the
waiver. United States v. Attar, 38 F.3d 727, 731-33 (4th Cir.
1994). White’s appeal is foreclosed by United States v. Blick, 408
F.3d 162 (4th Cir. 2005), in which this court held that a waiver of
appellate rights in a plea agreement that was accepted prior to the
Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738
1
The court gave an alternative sentence in accordance with
this court’s decision in United States v. Hammoud, 378 F.3d 426
(4th Cir. 2004) (order), opinion issued by 381 F.3d 316, 353-54
(4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051 (2005).
Treating the guidelines as advisory, the alternate sentence was
also 151 months’ imprisonment.
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(2005), was not invalidated by the change in law effected by that
decision. See Blick, 408 F.3d at 170, 173; see also United States
v. Johnson, 410 F.3d 137 (4th Cir. 2005) (rejecting argument that
a defendant cannot waive the right to appeal based on subsequent
changes in the law). We find that White’s challenge falls within
the scope of his pre-Booker appeal waiver.
Next, White argues that his right to appeal under Blakely
was preserved by the district court notwithstanding the waiver
provision in his plea agreement. During the sentencing hearing,
White’s counsel stated, “Your Honor, preliminarily, I’ll make an
argument based on Blakely. As the court knows, the principles of
Blakely may or may not affect the sentencing guidelines.” The
court replied, “I deem all of your Blakely arguments to be made,
and your position preserved.” White relies upon United States v.
Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995), for the proposition
that the Government’s silence after the court’s statement modified
the plea agreement. However, in Buchanan the district court twice
told the defendant that he had the right to appeal his sentence
despite the appellate waiver in the plea agreement. 59 F.3d at
917-18. The Ninth Circuit concluded that the defendant had a right
to rely on the oral statement of the court when the government
failed to object. Id. at 918. However, in this case the court did
not state that White retained the right to appeal his sentence
based on Blakely, and the court’s statement that the Blakely
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argument is “preserved” was not sufficient to modify the plea
agreement. Moreover, White did not rely to his detriment on the
explanation of the district court in entering his guilty plea. Cf.
United States v. Wood, 378 F.3d 342, 350 (4th Cir. 2004). We
further observe that even if White’s appellate waiver was not
enforced, the district court’s imposition of an identical
alternative sentence would cause us to conclude that any error in
the court’s application of the challenged career offender
enhancement was harmless.
Accordingly, we dismiss White’s 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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