UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4948
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRELL WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. W. Craig Broadwater,
District Judge. (2:05-cr-00008-WCB)
Submitted: February 12, 2007 Decided: March 8, 2007
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Joseph J. Harris, Morgantown, West Virginia, for Appellant. Thomas
O. Mucklow, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrell Washington pled guilty to aiding and abetting the
distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2000), and was sentenced to 240 months in prison. He now appeals.
The United States has moved to dismiss the appeal, based on
Washington’s waiver of his appellate rights. Washington opposes
the motion. We find that the appeal waiver is valid and
enforceable and the issues Washington seeks to raise on appeal lie
within the scope of the waiver. We therefore grant the United
States’ motion and dismiss the appeal.
I
Washington signed a written plea agreement containing the
following provision:
Defendant is aware that Title 18, United States Code,
Section 3742 affords a defendant the right to appeal the
sentence imposed. Acknowledging all this, and in
exchange for the concessions heretofore made by the
United States in this plea agreement, Defendant knowingly
and voluntarily waives the right to appeal any sentence
which is within the maximum provided in the statute of
conviction or . . . the manner in which that sentence was
determined on any ground whatever, including those
grounds set forth in Title 18, United States Code,
Section 3742.
The plea agreement set forth the maximum sentence that Washington
faced and made clear that the sentencing guidelines applied.
Washington stipulated in the agreement that the relevant conduct
was 612.26 grams of cocaine base and 301.5 grams of cocaine
hydrochloride, for a marijuana equivalency of 12,305.5 kilograms.
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At arraignment, the district court ascertained that
Washington had given up his right to appeal. The court identified
the other rights Washington waived by pleading guilty and
determined that Washington understood the charge against him and
the applicable penalty. Washington represented to the court that
he was satisfied with his attorney’s services and that he had
voluntarily entered into the plea agreement. He stated that he was
guilty of the offense charged.
Washington’s probation officer prepared a presentence
report (PSR). At sentencing, the district court overruled some of
Washington’s objections to the PSR and sustained others.
Washington’s guideline range was the statutory maximum of 240
months. After considering the factors set forth at 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006), the district court sentenced
Washington to 240 months in prison.
Washington appeals, contending that his offense level was
enhanced in violation of the Sixth Amendment based on his role in
the offense and that he should have received a reduction in his
offense level based on acceptance of responsibility. The United
States moves to dismiss the appeal, contending that Washington
validly waived his right to appeal. Washington opposes the motion.
This case is governed by our decision in United
States v. Blick, 408 F.3d 162 (4th Cir. 2005). The issue in Blick
was whether a waiver-of-appellate-rights provision in a plea
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agreement was enforceable after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005). We employed a two-
part analysis to decide the issue. First, we considered whether
the waiver was knowing and voluntary. Blick, 408 F.3d at 169.
After deciding that it was, we considered whether the issues raised
on appeal were within the scope of the waiver. Because they were,
we dismissed the appeal. Blick, 408 F.3d at 169-73.
This court reviews de novo the validity of a waiver.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Whether
a waiver of the right to appeal is knowing and intelligent depends
upon the facts and circumstances surrounding its making, including
the defendant’s background, experience, and conduct. United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). A waiver is
ineffective if the district court fails to question the defendant
about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.
1991), unless other evidence in the record shows that the waiver
was informed and voluntary. Davis, 954 F.2d at 186.
Here, Washington’s waiver was knowing and voluntary. He
was thirty-one years old and had completed the eleventh grade. The
waiver-of-appellate-rights provision was set forth in a separate
paragraph of the plea agreement and was specifically addressed at
arraignment.
While Washington’s plea agreement prohibits an appeal of
his sentence, it is his sentence that he challenges on appeal. The
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appellate issues lie within the scope of the waiver and, under
Blick, they are not reviewable on appeal.
We therefore grant the Government’s motion and 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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