UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4111

EDDIE ANDRIC CORBETT, a/k/a Dreek,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-95-151-F)

Submitted: February 24, 1998

Decided: March 16, 1998

Before ERVIN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Richard Luby Cannon, III, Greenville, North Carolina, for Appellant.
Anne Margaret Hayes, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Eddie Andric Corbett was arrested in 1995 for conspiracy to pos-
sess with intent to distribute cocaine base. Corbett entered a plea
agreement with the Government, and cooperated in the investigation
of the conspiracy. The plea was entered on September 6, 1995.

The district court initially sentenced Corbett to 262 months impris-
onment, to be followed by five years supervised release. In August
1996, the Government moved for downward departure pursuant to
Fed. R. Crim. P. 35(b). The district court reduced Corbett's sentence
to 192 months. In February 1997, another Rule 35 motion resulted in
a reduction to 168 months. Corbett's notice of appeal followed that
ruling.

Counsel filed this brief pursuant to Anders v. California, 386 U.S.
738 (1967). He alleges that the district court abused its discretion in
failing to sentence Corbett in conformity with similarly situated co-
defendants who received drastic sentence reductions. He also argues
that Corbett should have been allowed to be present at the Rule 35
hearings.

In both the plea agreement and the plea proceeding, Corbett agreed
to waive any appeal from the sentence, reserving only the right to
appeal from an upward departure by the sentencing judge. A waiver
of appeal provision in a valid plea agreement is enforceable, as long
as it is the result of a knowing and intelligent decision to forgo an
appeal. United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994);
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether
such a waiver is knowing and intelligent depends"upon the particular
facts and circumstances surrounding [its making], including the back-
ground, experience and conduct of the accused." United States v.
Davis, 954 F.2d 182, 186 (4th Cir. 1992) (quoting Johnson v. Zerbst,
304 U.S. 458, 464 (1938)). We review de novo the validity of a
waiver. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
Even a valid waiver does not bar appellate review of every sentence,
such as one imposed in excess of the maximum legal penalty or based

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on an impermissible factor such as race. United States v. Broughton-
Jones, 71 F.3d 1143, 1146-47 (4th Cir. 1995).

We conclude that Corbett's waiver was knowing and voluntary. At
the Rule 11 proceeding, the district court established that Corbett was
twenty-two years old, had been educated through the twelfth grade,
was represented by counsel, and had discussed the charges against
him with his lawyer. The district court specifically mentioned the
appellate waiver when setting out the terms of the plea agreement,
and Corbett agreed that the district court represented the terms cor-
rectly. Nothing in the record suggests that Corbett's decision to waive
his appeal rights was not a knowing and intelligent one.

Therefore, we conclude that Corbett's waiver is valid and binding,
and we lack jurisdiction to review the modification of his sentence
under Fed. R. Crim. P. 35(b). 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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