UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4963
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CRAIG WEBSTER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
04-269-PJM)
Submitted: August 30, 2006 Decided: September 27, 2006
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Chan Park, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Craig Webster pled guilty to possession of fifty grams or
more of cocaine base (crack) with intent to distribute, 21 U.S.C.A.
§ 841(a), (b)(1)(A) (West 1999 & Supp. 2006), and was sentenced as
a career offender to a term of 262 months imprisonment. U.S.
Sentencing Guidelines Manual § 4B1.1 (2004). Webster seeks to
appeal his sentence, arguing that (1) the district court erred in
relying on a Maryland application of charges to find that his prior
assault conviction was a predicate offense for career offender
status, and (2) the sentence violated the Sixth Amendment because
the predicate convictions were not charged in the indictment or
proved beyond a reasonable doubt. Because Webster waived his right
to appeal his sentence, we dismiss the appeal.
In paragraph 12 of his plea agreement, Webster waived his
right to appeal “whatever sentence is imposed . . . and any issues
that relate to the establishment of the advisory guidelines range,
as follows: the Defendant waives any right to appeal from any
sentence within or below the advisory guidelines range resulting
from an adjusted base offense level of 34 . . . .” Webster
reserved the right to appeal a sentence that exceeded the statutory
maximum permitted by law.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Blick, 408 F.3d 162,
169 (4th Cir. 2005). To determine whether a waiver is knowing and
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intelligent, this court examines the background, experience, and
conduct of the defendant. United States v. Broughton-Jones, 71
F.3d 1143, 1146 (4th Cir. 1995). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both
valid and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir.), cert. denied, 126 S. Ct. 461 (2005); United States v.
Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). The question of
whether a defendant validly waived his right to appeal is a
question of law that this court reviews de novo. Blick, 408 F.3d
at 168.
Here, the district court fully complied with the
requirements of Rule 11 during the plea colloquy. Webster was
forty-six years old and stated that he had graduated from high
school. Webster also stated that he understood that he was waiving
his right to appeal his sentence if the base offense level was 34
or below.*
In his reply brief, Webster contends that the waiver does
not bar his appeal because he is claiming that his sentence was
imposed in violation of constitutional and statutory law. Webster
concedes that his criminal history claim was rejected by this court
*
The district court misstated this provision. The plea
agreement provided that Webster would waive his appeal right if the
“adjusted base offense level” was 34 or below. In any event, the
adjusted base offense level was 32.
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in United States v. Simms, 441 F.3d 313 (4th Cir. 2006), petition
for cert. filed, July 11, 2006 (No. 06-5271), after his brief was
filed. He further concedes that his Sixth Amendment claim was
rejected by this court in United States v. Cheek, 415 F.3d 349 (4th
Cir.), cert. denied, 126 S. Ct. 640 (2005). Although a defendant’s
valid waiver of his right to appeal does not prevent “appellate
review of a sentence imposed in excess of the maximum penalty
provided by statute or based on a constitutionally impermissible
factor such as race,” see United States v. Marin, 961 F.2d 493, 496
(4th Cir. 1992), Marin is of no assistance to Webster. The
statutory range for Webster’s offense was ten years to life under
21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2006). The 262-month
sentence he received was within the statutory range. Webster did
not reserve the right to raise a Sixth Amendment claim relating to
his career offender status; moreover, this court had already
rejected the Sixth Amendment claim he seeks to raise by the time he
was sentenced.
Webster also alleges that the waiver provision was
ambiguous because the parties agreed that he was a career offender,
but did not agree on his criminal history or criminal history
category. Although the agreement is somewhat equivocal about
Webster’s career offender status, it is not ambiguous about his
waiver of appeal right. We conclude that the waiver is
enforceable.
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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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