UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WAVERLY JERMAINE JORDAN, a/k/a Waverley
Jermaine Jordan,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:04-cr-00025-gec)
Submitted: March 28, 2007 Decided: April 27, 2007
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Cincinnati, Ohio,
for Appellant. John L. Brownlee, United States Attorney, Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Waverly Jermaine Jordan
pled guilty to conspiracy to distribute fifty grams or more of
crack cocaine (Count 1), in violation of 21 U.S.C. § 846 (2000),
and using, carrying, or possessing a firearm during and in relation
to or in furtherance of a drug trafficking crime (Count 2), in
violation of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2006). The
district court sentenced Jordan to 222 months of imprisonment on
Count 1 and a consecutive sixty-month sentence on Count 2. Jordan
appeals the sentence imposed on Count 1, contending that he did not
receive a full and fair sentencing hearing and that the district
court’s drug quantity and role-in-the-offense determinations were
not supported by a preponderance of the evidence. The Government
asserts that Jordan validly waived the right to appeal his sentence
in the plea agreement. We agree with the Government, grant the
motion to dismiss, and dismiss the appeal.
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
intelligent, we examine the “totality of the circumstances,
including the experience and conduct of the accused, as well as the
accused’s educational background and familiarity with the terms of
the plea agreement.” United States v. General, 278 F.3d 389, 400
(4th Cir. 2002) (internal quotation marks and citation omitted).
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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). However, an appeal waiver does not
preclude challenges to a sentence on the ground that it exceeds the
statutory maximum or is based on a constitutionally impermissible
factor such as race, appeals from the denial of a motion to
withdraw a guilty plea based on ineffective assistance of counsel,
or claims concerning a violation of the Sixth Amendment right to
counsel in proceedings following the guilty plea. Johnson, 410
F.3d at 151 (citations omitted). The issue of whether a defendant
validly waived his right to appeal is a question of law that we
review de novo. Blick, 408 F.3d at 168.
Jordan challenges the validity of the waiver on the
grounds that he was not informed that he could be sentenced on
uncharged conduct, that he could be sentenced based upon
information he believed was inaccurate, or that he agreed to be
sentenced in accordance with the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006). However, our review of the
plea agreement and the hearing conducted pursuant to Fed. R. Crim.
P. 11 leads us to conclude that Jordan knowingly and voluntarily
waived his right to appeal. See Johnson, 410 F.3d at 151; General,
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278 F.3d at 400. Jordan next asserts that, even if this court
concludes that the waiver was knowing and voluntary, the court
should not enforce the waiver because he did not receive a full and
fair sentencing hearing. We reject that assertion as belied by the
record and conclude that the claims Jordan raises on appeal fall
within the scope of the valid and enforceable waiver provision.
Accordingly, we grant the Government’s motion to dismiss
and dismiss the appeal based upon the waiver provision in the plea
agreement. 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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