                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4152


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

MARVIN ANTOIN DUCKETT, a/k/a Marvin A. Duckett,          a/k/a
Marvin Antoine Duckett, a/k/a Marvin Antwon Duckett,

                      Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:10-cr-00189-AW-1)


Submitted:   November 13, 2012            Decided: November 15, 2012


Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gerald C. Ruter, THE LAW OFFICES OF GERALD C. RUTER, P.C.,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Adam K. Ake, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Marvin        Antoin     Duckett        appeals        from        the    criminal

judgment       imposed       after      he   pleaded         guilty     to       conspiracy      to

distribute and possess with the intent to distribute at least

100    grams      of   PCP    or   at    least       one   kilogram         of    a    mixture   or

substance containing a detectable amount of PCP.                                  He received a

240-month sentence.             Duckett challenges the voluntariness of his

guilty plea.

               Duckett        executed       a       written       plea      agreement         that

provided in part that he would be able to appeal the sentence

imposed      if      it   was      above     the      high     end     of    the        Sentencing

Guidelines range and that the Government could appeal a sentence

below the low end of the Guidelines range.                           At the Fed. R. Crim.

P. 11 hearing, Duckett’s attorney asserted that Duckett would be

able to appeal from the sentence imposed if he argued for a

downward variance.              The district court quickly informed counsel

that    he     was     mistaken.           Counsel      had    a     brief       off-the-record

discussion of the issue with Duckett.                         The court then confirmed

on the record that Duckett understood that he could not appeal

from a sentence that did not meet his request for a downward

variance or was below the applicable Guidelines range.                                    Duckett

stated that he agreed.

               On      appeal,      Duckett          contends        that        his    plea     was

unknowing and involuntary because he did not entirely understand

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the appeal waiver and that he did not have sufficient time to

understand the ramifications of the appeal waiver since, first,

he entered into the agreement the same day that he entered his

plea and, second, the off-the-record discussion was brief.                                   A

defendant may, in a valid plea agreement, waive the right to

appeal under 18 U.S.C. § 3742 (2006).                     United States v. Wiggins,

905 F.2d 51, 53 (4th Cir. 1990).                   An appellate waiver must be

“the result of a knowing and intelligent decision to forgo the

right   to     appeal.       United    States      v.     Broughton-Jones,          71   F.3d

1143,    1146       (4th    Cir.     1995)   (internal           quotation      marks      and

citation       omitted).        This    court      reviews        de    novo    whether      a

defendant has effectively waived the right to appeal.                                 United

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

               To    determine       whether      a       waiver       is     knowing      and

intelligent,         this      court     examines          the     totality         of     the

circumstances,         including       the   accused’s           experience,        conduct,

educational          background,       and       familiarity           with     the      plea

agreement’s terms.           United States v. General, 278 F.3d 389, 400

(4th    Cir.    2002).       Generally,      if       a   court    fully       questions     a

defendant      regarding       the   appellate        waiver      during      the   Rule    11

colloquy,      the    waiver    is    both   valid        and    enforceable.         United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).                               However,

this court will refuse to enforce an otherwise valid waiver if



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enforcing      the     waiver       would     result         in     a     miscarriage         of

justice.      Id.

              After reviewing the materials on appeal, including the

Rule 11 hearing transcript, we conclude that Duckett’s guilty

plea was knowing and voluntary.                   The language of the waiver is

clear and unambiguous.              The terms of the plea agreement waive

the right to appeal “whatever sentence is imposed (including the

right to appeal any issues that relate to the establishment of

the advisory guidelines range . . .)” except that the Defendant

may   appeal    any    sentence      that     “exceeds        the       high     end    of   the

applicable     guideline       range”       and   the    Government            reserved      the

right   to    appeal    from    a    sentence       below         the    low     end    of   the

applicable      guideline        range.             Moreover,            after     counsel’s

misunderstanding        during       the     Rule       11    colloquy,           the    court

questioned      Duckett      specifically         regarding             the    misunderstood

provision of the waiver.              Duckett affirmed that he understood

the   terms    of     the    appellate       waiver.          The        guilty    plea      was

therefore knowing and voluntary.

             We therefore affirm the conviction and sentence.                                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.



                                                                                       AFFIRMED

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