UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5019
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDDIE LAMONT FOX,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:06-cr-225-BO)
Submitted: April 22, 2008 Decided: May 5, 2008
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Jeffrey B. Welty, Durham, North Carolina, for Appellant. George E.
B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eddie Lamont Fox appeals his eighty-seven month prison
sentence following his guilty plea to distributing five or more
grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (West 1999 & Supp. 2007). We have reviewed the record
and find no reversible error.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Amaya-Portillo, 423
F.3d 427, 430 (4th Cir. 2005). To determine whether a waiver is
knowing and intelligent, this court examines the totality of the
circumstances, including the accused’s experience, conduct,
educational background, and familiarity with the terms of the plea
agreement. United States v. General, 278 F.3d 389, 400 (4th Cir.
2002). Generally, if the district court fully questioned a
defendant regarding the waiver of his right to appeal during the
Rule 11 colloquy, the waiver is both valid and enforceable. See
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). The
question of whether a defendant validly waived his right to appeal
is a question of law that this court reviews de novo. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our review of
the record leads us to conclude that Fox knowingly and voluntarily
waived the right to appeal the calculation of the Sentencing
Guidelines range and the reasonableness of his sentence. Thus, we
dismiss this part of Fox’s appeal.
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However, an appellate waiver does not preclude challenges
to a sentences based on a constitutionally impermissible sentencing
factor such as race. United States v. Marin, 961 F.2d 493, 496
(4th Cir. 1992). Fox argues the district court chose to sentence
him at the top of the Guidelines range because he violated the
district judge’s moral and religious beliefs by having five
children out of wedlock with three different women. The court,
however, did not express any personal religious beliefs. Further,
our review of the record convinces us that the court noted Fox’s
marital status only in concluding that Fox’s lack of responsibility
to his children had serious ramifications for the children,
including Fox’s failure to pay child support. This reasoning was
entirely permissible, and is consistent with our recognition that,
“[t]o a considerable extent a sentencing judge is the embodiment of
public condemnation and social outrage.” United States v. Baker,
925 F.2d 728, 740 (4th Cir. 1991). We thus conclude the district
court did not use any constitutionally impermissible factors when
sentencing Fox. Accordingly, to the extent this specific claim
raises an issue not precluded by the plea agreement’s waiver of
appellate rights, we affirm the sentence of the district court.
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 IN PART;
AFFIRMED IN PART
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