                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4497



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RONALD STUART ROSE, a/k/a Rahking,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-03-444)


Submitted:   January 31, 2006               Decided:    May 15, 2006


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Charles D. Lewis,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Richmond, Virginia, for Appellant.       Paul J.
McNulty, United States Attorney, Michael J. Elston, S. Davis
Schiller, Assistant United Sates Attorneys, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Ronald Stuart Rose pled guilty to one count of possession

with intent to distribute fifty grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (2000), and was sentenced to 262

months in prison.   Rose now appeals, arguing that his waiver of his

appeal rights is not enforceable and that his sentence violates the

rule of Blakely v. Washington, 542 U.S. 296 (2004).             The United

States moves to dismiss the appeal based on the waiver.               We find

the waiver enforceable, grant the Government’s motion, and dismiss

the appeal.



                                       I

           Rose signed a written plea agreement containing the

following provision:

     The defendant also understands that Title 18, United
     States Code, Section 3742 affords a defendant the right
     to appeal the sentence imposed.         Nonetheless, the
     defendant knowingly waives the right to appeal the
     conviction and any sentence within the maximum provided
     in the statute of conviction (or the manner in which that
     sentence was determined) on the grounds set forth in
     Title 18, United States Code, Section 3742 or on any
     ground whatsoever, in exchange for the concessions made
     by the United States in this plea agreement.

The plea agreement set forth the maximum sentence that Rose faced

and made clear that the sentencing guidelines applied and that the

court   would   apply   a   sentence   within   those   guidelines.      Rose

admitted that he was guilty of the offense charged and that a



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Statement of Facts filed with the plea agreement accurately set

forth the facts of the offense.

           Rose signed the agreement. By signing, Rose acknowledged

that he had read the agreement and reviewed it with his lawyer.

Further, Rose stated that he understood his rights with respect to

the indictment and the sentencing guidelines.    Finally, he stated

that he understood the agreement and voluntarily agreed to it.

           At arraignment, the district court ascertained that Rose

was thirty-six years old and a had a tenth-grade education.      The

court identified the rights that Rose waived by going to trial.

The court specifically mentioned that, in the plea agreement, Rose

waived his right to appeal any guideline sentence.     The court then

asked Rose:   “According to the plea agreement you have agreed to

waive your right to appeal my guideline sentence if it falls within

the limits called for by the guidelines?”   J.A. 21.   Rose answered

that he had so agreed, and the government did not object to the

court’s description of the appellate waiver.     The district court

concluded that Rose knowingly and voluntarily entered the plea and

adjudged him guilty.

           At sentencing, the district court adopted the presentence

report, which calculated that Rose’s offense level was 34 and his

criminal history category was VI, for a resulting guideline range

of 262-327 months.     The court sentenced Rose to 262 months in

prison.   This appeal followed.


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                                           II

              Rose   contends      that    the    appeal    waiver   in   the   plea

agreement is not enforceable.             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 agreement was enforceable after the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (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.       Having decided that it was, we asked whether the

issues raised on appeal were within the scope of that motion.                   Id.

They were, and the appeal was subject to dismissal.                  Id. at 173.

      We review 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, Rose’s waiver was clearly knowing and voluntary.

He was thirty-six and had a tenth-grade education.                   The district


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judge questioned him about the waiver of his appellate rights, and

Rose acknowledged that he had waived his right to appeal his

sentence.      The details of the waiver were clearly set forth in the

written plea agreement, which Rose had read, discussed with his

attorney, and understood.

            Further, the issue that Rose seeks to raise--that his

sentence violates the rule announced in Blakely--is an issue that

is   clearly     related   to   the     manner    in    which   his   sentence    was

determined.      As such, and because the sentence imposed lies within

the statutory maximum to which Rose was exposed, we conclude that

his waiver of his appeal rights lies within the scope of the

waiver.    Under Blick, the matter is not reviewable on appeal.

            Rose argues that the government’s silence in response to

the court’s assertion that Rose agreed to waive his right to appeal

his sentence “if it falls within the limits called for by the

guidelines” effected a modification of the plea agreement.                       This

court has held that where a district court’s mischaracterization of

a material term is sufficiently pervasive to alter a defendant’s

understanding      of   the     terms     of     his    plea,   the   Government’s

affirmative acquiescence in the court’s explanation can serve to

modify the terms of the plea agreement.                United States v. Wood, 378

F.3d 342, 349 (4th Cir. 2004).             Although the government did not

object    when    the   district      court      mischaracterized      the   waiver

provision in this case, it said nothing to suggest that the court’s


                                        - 5 -
statement of Rose’s appellate rights was accurate. Absent evidence

of the government’s affirmative acquiescence in the court’s mistake

(or any other facts in the record to support Rose’s modification

argument), we cannot conclude that his plea agreement was modified.

          We therefore 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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