UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-4179
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH ARDELL WHALEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Greenville. Terrence W. Boyle, Chief
District Judge. (CR-97-22)
Submitted: September 15, 1998 Decided: October 7, 1998
Before MURNAGHAN, WILKINS, and NIEMEYER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Dean R. Davis, Wilmington, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Jane J. Jackson, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Ardell Whaley pleaded guilty to one count of conspiracy
to possess with intent to distribute and to distribute metham-
phetamine in violation of 21 U.S.C. § 846 (1994). Whaley was subse-
quently sentenced to 46 months’ imprisonment and an ensuing five-
year term of supervised release. In his plea agreement, Whaley
agreed to waive his right to appeal whatever sentence the district
court imposed including any issues that relate to the establishment
of the Guideline range. On appeal, Whaley alleges that his sentence
was unjustifiably harsh compared to the probationary sentence re-
ceived by his co-defendant who allegedly had a greater involvement
in the drug conspiracy. He maintains that this disproportionate
sentence is due primarily to the Government’s failure to provide
him an adequate opportunity to furnish substantial assistance so
that he, like his co-defendant, could have also received a downward
departure. He was, however, interviewed by a government agent and
had the opportunity to provide information. We dismiss Whaley’s
appeal.*
During the Fed. R. Crim. P. 11 hearing, the court questioned
Whaley about the waiver provision contained in the plea agreement,
and Whaley stated that he understood the provision. A defendant may
*
The Government’s argument that Whaley’s notice of appeal was
untimely filed is without merit. Because the last day of the appeal
period fell on a Sunday, Whaley’s notice of appeal was properly
filed the next day. See Fed. R. App. P. 26(a).
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waive his statutory right to appeal his sentence if the waiver is
knowing and voluntary. See United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992). For a waiver to be knowing and voluntary, the
district court should specifically question the defendant about the
waiver provision before accepting his plea. Whether the waiver is
effective is a legal question reviewed de novo. See id. Based on
Whaley’s statements at the plea colloquy, we find that the waiver
was made knowingly and voluntarily.
We therefore dismiss the appeal. We dispense with oral argu-
ment because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED
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