                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4763


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

STEPHEN BRENT HIMES,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:10-cr-00026-FL-1)


Submitted:   February 22, 2011            Decided:   March 17, 2011


Before KING, KEENAN, and WYNN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    Tobin Webb Lathan, OFFICE OF THE UNITED STATES
ATTORNEY, Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Stephen       Brent    Himes      pleaded      guilty,      pursuant        to   a

written plea agreement, to armed bank robbery, in violation of

18     U.S.C.      § 2113(a),      (d)     (2006).            He   was        sentenced       to

ninety-five months’ imprisonment.                   On appeal, Himes’ counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), in which he states there are no meritorious issues for

appeal, but questions whether the district court erred in giving

adequate     consideration         to    the   impending       recency        amendment       to

U.S.    Sentencing         Guidelines      Manual       (“USSG”)        § 4A1.1        (2009).

Himes has not filed a pro se supplemental brief.                          The Government

has moved to dismiss the appeal of Himes’ sentence based upon a

waiver of appellate rights in his plea agreement.

             Pursuant to a plea agreement, a defendant may waive

his appellate rights.              United States v. Manigan, 592 F.3d 621,

627    (4th Cir. 2010).            A    waiver      will    preclude          appeal    of    a

specific issue if the waiver is valid and the issue is within

the scope of the waiver.                United States v. Blick, 408 F.3d 162,

168    (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.              Manigan, 592 F.3d at 626.

             An     appellate       waiver         is   valid      if     the      defendant

knowingly and intelligently agreed to waive the right to appeal.

Id.    at   627.      To    determine      whether      a   waiver       is    knowing       and

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intelligent,          this        court    examines       the     totality       of      the

circumstances.             Id.      Generally,    if    the     district    court     fully

questions       a    defendant       regarding    the    waiver     of   his     right    to

appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is

both    valid       and    enforceable.       Id.;     United     States    v.   Johnson,

410 F.3d 137, 151 (4th Cir. 2005).                     Here, the magistrate judge

complied with the requirements of Fed. R. Crim. P. 11.                                   The

magistrate judge ensured that Himes had read the plea agreement,

that counsel explained it to him, and that he understood the

consequences of the waiver of appellate rights set forth in the

agreement.

            Accordingly,            we    grant   the     Government’s         motion     to

dismiss Himes’ appeal of his sentence and dismiss the appeal in

part.     In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal    that       are    not     encompassed   by     the    appeal     waiver.       We

therefore affirm Himes’ conviction.

            This          court   requires    that      counsel    inform      Himes,    in

writing,    of       the    right    to   petition      the    Supreme   Court     of    the

United States for further review.                       If Himes requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                         Counsel’s motion must

state that a copy thereof was served on Himes.                       We dispense with

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oral   argument   because     the   facts   and   legal    contentions    are

adequately   presented      in   the   material   before    the   court   and

argument would not aid the decisional process.



                                                           AFFIRMED IN PART;
                                                           DISMISSED IN PART




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