                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4222



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMAL WILLIAMS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-03-54)


Submitted:   October 19, 2005             Decided:   November 8, 2005


Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Jamal Williams pled guilty to one count of possession of

a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)

(2000), and was sentenced to 100 months in prison.   He now appeals.

The United States has moved to dismiss the appeal, based on

Williams’ waiver of his appellate rights.     Williams opposes the

motion.   We find that the appeal waiver is valid and enforceable

and the issue Williams seeks to raise on appeal lies within the

scope of the waiver.   We therefore grant the United States’ motion

and dismiss the appeal.

          Williams signed a written plea agreement containing the

following provision:

     The Defendant agrees . . . [t]o knowingly and expressly
     waive all rights, conferred by 18 U.S.C. § 3742, to
     appeal whatever sentence is imposed, including any issues
     that relate to the establishment of the Guideline range,
     reserving only the right to appeal from an upward
     departure from the Guideline range that is established at
     sentencing.

The plea agreement set forth the minimum and maximum sentence that

Williams faced and made clear that the sentencing guidelines

applied and that the court would apply a sentence within the

guidelines unless there was a basis for departure.

          At Williams’ arraignment, the district court ascertained

that Williams was thirty-two years old and had a ninth grade

education.    He was not under the influence of drugs or alcohol.

The court identified the rights that Williams waived by pleading


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guilty, and specifically mentioned the right to appeal.        Williams

informed the court that he understood the court’s explanation of

the waiver.    The court ascertained that Williams understood the

charges against him, the applicable penalties, and the mandatory

nature of the sentencing guidelines.        Williams represented to the

court that he was satisfied with his attorney’s services and that

he had voluntarily entered into the plea agreement. He stated that

he   was   guilty   of   the   offense   charged.   After   hearing   the

Government’s proffer, the district court concluded that Williams

had knowingly and voluntarily entered his plea, which was supported

by an independent factual basis.         The court accordingly adjudged

Williams guilty.

            At sentencing, the district court adopted the presentence

report, determined that Williams’ guideline range was 100-120

months, and sentenced him to 100 months in prison.             Williams

appeals, contending that the district court violated the Sixth

Amendment when it increased his offense level based upon the number

of firearms involved in the offense and because one firearm had an

obliterated serial number.       The United States moves to dismiss the

appeal, contending that Williams validly waived his right to appeal

this issue.

            This case is governed by our recent decision in United

States v. Blick, 408 F.3d 162 (4th Cir. 2005). The issue in Blick

was whether a waiver-of-appellate rights provision in a plea


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agreement was enforceable after the Supreme Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005).         We employed a two-

part analysis to decide the issue.         First, we considered whether

the waiver was knowing and voluntary.           Blick, 408 F.3d at 169.

After deciding that it was, we considered whether the issues raised

on appeal were within the scope of that motion.         Because they were,

we dismissed the appeal.    Blick, 408 F.3d at 169-73.

           This court reviews de novo the validity of a waiver.

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).         Whether

a waiver of the right to appeal is knowing and intelligent depends

upon the facts and circumstances surrounding its making, including

the   defendant’s   background,    experience,    and   conduct.    United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992).           A waiver is

ineffective if the district court fails to question the defendant

about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.

1991), unless other evidence in the record shows that the waiver

was informed and voluntary.       Davis, 954 F.2d at 186.

           Here, Williams’ waiver was clearly knowing and voluntary.

He was thirty-two and was not under the influence of drugs or

alcohol when he entered his plea.          The district judge questioned

him about the waiver of his appellate rights, and Williams stated

that he understood what rights he was waiving.          The details of the

waiver were clearly set forth in the written plea agreement.




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          In his plea agreement, Williams reserved the right to

appeal an upward departure from his guideline range.        Here, he

attempts to challenge the calculation of his offense level as

violative of his Sixth Amendment rights.      This issue lies within

the scope of the appellate waiver.     Under Blick, the matter is not

reviewable on appeal.

          We therefore grant the Government’s motion and dismiss

the appeal.   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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