UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5036
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEZMEND RASHAWN DOWEARY, a/k/a Hit,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-04-16)
Submitted: March 10, 2006 Decided: March 30, 2006
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Charles R. Burke, Virginia Beach, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Darryl J. Mitchell, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dezmend Rashawn Doweary seeks to appeal his conviction
and sentence to 262 months in prison and five years of supervised
release after pleading guilty to conspiracy to distribute and
possess with intent to distribute one kilogram or more of heroin in
violation of 21 U.S.C. § 846 (2000). Doweary seeks a remand to the
district court for resentencing to impose an alternative sentence
announced by the district court after Blakely v. Washington, 542
U.S. 296 (2004), and prior to United States v. Booker, 543 U.S. 220
(2005). Because Doweary waived his appellate rights in his plea
agreement, we grant the Government’s motion to dismiss and deny
Doweary’s motion to remand.
When the Government seeks to enforce a waiver of
appellate rights, and there is no claim that the Government
breached the plea agreement, this court will enforce the waiver if
the record establishes the defendant knowingly and intelligently
agreed to waive the right to appeal, and the issue being appealed
is within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005). “An appeal waiver is not
knowingly or voluntarily made if the district court fails to
specifically question the defendant concerning the waiver provision
of the plea agreement during the Rule 11 colloquy and the record
indicates that the defendant did not otherwise understand the full
significance of the waiver.” United States v. Johnson, 410 F.3d
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137, 151 (4th Cir.), cert. denied, 126 S. Ct. 461 (2005) (internal
quotations and citations omitted).
In his plea agreement, Doweary waived his right to appeal
his conviction and “any sentence within the maximum provided in the
statute of conviction (or the manner in which that sentence was
determined) on . . . any ground whatsoever.” The district court
specifically questioned Doweary concerning the appellate waiver at
his guilty plea hearing, and he reaffirmed the waiver at
sentencing. Doweary does not assert that his sentence exceeded the
statutory maximum or that the Government breached the plea
agreement. Rather, he argues he could not have anticipated
announcement of the alternative sentence in the wake of Blakely,
and his waiver was therefore unknowing and involuntary. We
conclude this argument is foreclosed by our decisions in Blick, 408
F.3d at 170, and Johnson, 410 F.3d at 153.
Accordingly, we grant the Government’s motion to dismiss
and deny Doweary’s motion to remand. 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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