                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4765


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HOMERO ARMENDARIZ-TAMEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (2:11-cr-00040-H-2)


Submitted:   April 15, 2013                 Decided:   April 30, 2013


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


James M. Ayers II, AYERS & HAIDT, P.A., New Bern, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Homero Armendariz-Tamez appeals the 156-month sentence

imposed     by    the    district         court       following          his    guilty    plea,

pursuant     to    a     written         plea       agreement,           to    conspiracy     to

distribute and to possess with intent to distribute more than

five   kilograms        of   cocaine,      in       violation       of    21    U.S.C.    §   846

(2006),     possession         of    a    firearm       by    an     illegal         alien,    in

violation of 18 U.S.C. §§ 922(g)(5), 924 (2006), and illegal

reentry, in violation of 8 U.S.C. § 1326(a) (2006).                                  On appeal,

Armendariz-Tamez’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that there are no

meritorious       grounds      for       appeal      but     questioning         whether      the

district court abused its discretion in applying a two-level

enhancement       for        Armendariz-Tamez’s              role        in    the     offense.

Armendariz-Tamez has filed a pro se supplemental brief raising

the same issue.

            The     Government            has       filed     a     motion       to      dismiss

Armendariz-Tamez’s            appeal       based       on     the         appellate       waiver

provision    in    the       plea   agreement.             Armendariz-Tamez’s            counsel

opposes the Government’s motion as untimely.                                   In his pro se

supplemental brief, Armendariz-Tamez argues that his appellate

waiver was not valid.               We grant in part the Government’s motion

and dismiss Armendariz-Tamez’s appeal of his sentence, and we



                                                2
deny    in    part    the    Government’s       motion   and    affirm    Armendariz-

Tamez’s convictions.

              We review de novo a defendant’s waiver of appellate

rights.       United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).        “A defendant may waive his right to appeal if that

waiver is the result of a knowing and intelligent decision to

forgo the right to appeal.”                 United States v. Amaya-Portillo,

423    F.3d   427,     430   (4th    Cir.   2005)   (internal         quotation   marks

omitted); see United States v. General, 278 F.3d 389, 400 (4th

Cir. 2002) (providing standard).                  The district court’s failure

to specifically question the defendant’s understanding of the

waiver provision is relevant to, but not dispositive of, the

question of whether the waiver was knowing and intelligent.                        Id.

We will enforce a valid waiver so long as “the issue being

appealed is within the scope of the waiver.”                    Blick, 408 F.3d at

168.

              Contrary       to   counsel’s      response      in   opposition,    the

Government timely raised the appellate waiver issue.                       See United

States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (stating

that government is free to raise appellate waiver in response to

Anders brief).         Additionally, our review of the record leads us

to    conclude       that,   under    the   totality     of     the    circumstances,

Armendariz-Tamez’s waiver of appellate rights was knowing and

intelligent.         Thus, the waiver is valid and enforceable.

                                            3
               Turning to the scope of the waiver, we conclude that

the sentencing issue raised in both the Anders brief and the pro

se supplemental brief falls within the scope of the appellate

waiver    provision,       because       the        156-month    downward        departure

sentence imposed by the district court fell below the Guidelines

range    established       at   the    sentencing          hearing.        Therefore,    we

grant in part the Government’s motion to dismiss and dismiss

this portion of the appeal.

               The waiver provision does not, however, preclude our

review    of    Armendariz-Tamez’s         convictions          pursuant     to   Anders.

Armendariz-Tamez         does    not   assert        any    error     in   the    district

court’s acceptance of his guilty plea.                        We have reviewed the

plea colloquy for plain error and have found none.                            See United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing

standard); see also United States v. Olano, 507 U.S. 725, 732

(1993) (detailing plain error standard).

               In accordance with Anders, we have reviewed the entire

record and have found no unwaived and potentially meritorious

issues    for    review.         We    therefore        affirm       Armendariz-Tamez’s

convictions.             This    court     requires           that     counsel      inform

Armendariz-Tamez,         in    writing,       of    his    right     to   petition     the

Supreme   Court     of    the    United    States       for     further     review.      If

Armendariz-Tamez requests that a petition be filed, but counsel

believes that such a petition would be frivolous, counsel may

                                           4
move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on

Armendariz-Tamez.       We dispense with oral argument because the

facts   and   legal    contentions    are   adequately   presented    in   the

materials     before   this   court   and   argument   would   not   aid   the

decisional process.

                                                         AFFIRMED IN PART;
                                                         DISMISSED IN PART




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