                          PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 04-4887
GEORGE R. BLICK,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
              Claude M. Hilton, Chief District Judge.
                            (CR-04-7)

                      Argued: March 18, 2005

                      Decided: May 27, 2005

       Before MICHAEL and SHEDD, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Dismissed by published opinion. Judge Shedd wrote the majority
opinion, in which Senior Judge Hamilton joined. Judge Michael wrote
a dissenting opinion.


                           COUNSEL

ARGUED: Jeffrey S. Parker, Great Falls, Virginia, for Appellant.
Dana James Boente, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Gilbert K. Davis, DAVIS & ASSOCIATES,
L.L.C., Fairfax, Virginia; James R. Tate, TATE & BYWATER,
2                      UNITED STATES v. BLICK
LTD., Vienna, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Alexandria, Virginia, for Appellee.


                             OPINION

SHEDD, Circuit Judge:

   George R. Blick appeals his 30-month sentence for wire fraud on
two grounds: (1) the district court erroneously calculated the loss
amount under U.S.S.G. § 2B1.1 in determining his sentencing guide-
line range, and (2) he should be resentenced in accord with United
States v. Booker, 125 S. Ct. 738 (2005). The United States has moved
to dismiss the appeal based on the appeal waiver in Blick’s written
plea agreement. Because we find that the appeal waiver is valid and
that the issues Blick has raised are within the scope of the waiver, we
grant the motion and dismiss this appeal.

                                  I.

  In January 2004, Blick was indicted on seven counts of wire fraud.
Before trial, Blick and the United States entered into a plea agree-
ment, in which he agreed to plead guilty to Count 5 of the indictment.

                                  A.

   The plea agreement contains a statement of facts that Blick agrees
establishes his guilt on Count 5 beyond a reasonable doubt. These
facts generally show that between March and October 2003, Blick
was a principal and one-third shareholder of Enterprise Integration,
Inc. ("EII"), a Fairfax, Virginia, information systems consulting busi-
ness. EII maintained an account at the Bank of America ("the BOA
account"). Blick was responsible for EII’s accounting and routine
business affairs, and he was a signatory on the BOA account.

   Between April and September 2003, Blick made unauthorized
withdrawals and payments totaling approximately $1,440,000 from
the BOA account to fund a personal transaction that was unrelated to
EII’s business. Count 5 specifically relates to a July 29, 2003, wire
                        UNITED STATES v. BLICK                        3
transfer of $180,000 Blick made (or caused) from the BOA account
to Pratt Morgan, Ltd. in Madrid, Spain. Blick’s EII partners were
unaware of his unauthorized withdrawals and payments, and Blick
believed that they would not have consented if they had known about
them.

   On July 11, 2003, three days before a new accountant was to begin
working at EII, Blick deposited $785,000 into EII accounts to replace
his prior unauthorized withdrawals and payments. Blick did not
record any withdrawals or payments on EII’s books until August 15,
2003. In late August 2003, Blick — without the knowledge or consent
of his partners — requested that BOA change the mailing address for
EII to a commercial mail receiving business. Blick committed all of
these acts for the purpose of executing a scheme to defraud EII.

                                  B.

   The plea agreement also contains several provisions related to sen-
tencing. Blick and the United States acknowledged in the plea agree-
ment that the "maximum penalties" for the wire fraud offense charged
in Count 5 are "a maximum term of 20 years of imprisonment, a fine
of $250,000, full restitution, a special assessment, and three years of
supervised release." Blick acknowledged his understanding that the
district court had "jurisdiction and authority to impose any sentence
within the statutory maximum described above but that the Court
[would] determine [his] actual sentence in accordance with the Sen-
tencing Guidelines and Policy Statements."

   The parties also agreed that "the actual or intended loss from the
scheme to commit wire fraud [for purposes of U.S.S.G. § 2B1.1] is
no greater than $655,000," and that Blick "reserves his right to con-
tend he is entitled to a credit against the loss pursuant to Application
Note 2(E)."1 Moreover, Blick agreed to the entry of a restitution order
"for the full amount of the victims’ losses," and he acknowledged that
the United States was then aware that EII was a victim which had suf-
  1
   Blick’s July 11, 2003, deposit of $785,000 into EII’s accounts left a
shortfall of $655,000. Under Application Note 2(E) to U.S.S.G. § 2B1.1,
the amount of loss is reduced by any money the defendant returned to the
victim before the offense was detected.
4                      UNITED STATES v. BLICK
fered a loss of $655,000. The parties further agreed that under appro-
priate circumstances Blick would be entitled to a three-level
sentencing reduction under U.S.S.G. § 3E1.1 for acceptance of
responsibility.

   In a section of the plea agreement titled "Waiver of Appeal and
Review," Blick acknowledged his understanding of his right under 18
U.S.C. § 3742 to appeal the sentence imposed. However, Blick agreed
that he "knowingly waives the right to appeal . . . 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
[§ 3742] or on any ground whatsoever, in exchange for the conces-
sions made by the United States in [the] plea agreement." The United
States’ concessions included dismissal of the remaining six counts of
the indictment and the grant of immunity to Blick from criminal pros-
ecution in the Eastern District of Virginia for the remaining conduct
described in the indictment and the stipulated facts.

   Blick and his counsel signed the plea agreement. By their signa-
tures, Blick and his counsel represented that Blick had been fully
advised concerning the terms of the plea agreement and that his deci-
sion to enter into the plea agreement was voluntary.

                                  C.

   At the guilty plea hearing, in response to questioning from the dis-
trict court, Blick stated under oath that he understood his rights and
how they would be affected by his guilty plea. Blick also stated that
the factual statement in the plea agreement was accurate and that he
was entering the plea voluntarily.

   The district court also specifically inquired whether Blick had
reviewed the plea agreement and whether he understood that in the
agreement he was waiving "any right [he] may have to appeal the sen-
tence that may be imposed." Blick answered both questions in the
affirmative. Additionally, the district court asked Blick whether he
understood "that by pleading guilty, the Court may impose the same
punishment as if [he] had been tried and convicted by a court or by
a jury." Blick answered, "Yes, sir, I do." Blick likewise indicated in
response to questions from the district court that he understood that
                        UNITED STATES v. BLICK                         5
he could be imprisoned "up to 20 years" and that "any sentence that
may be imposed will be affected by the Sentencing Guidelines."

  At the conclusion of the hearing, the district court found that Blick
"voluntarily and intelligently" entered the plea and that a factual basis
supported the plea. Accordingly, the district court accepted the plea
and found Blick guilty on Count 5 of the indictment.

                                   II.

   Less than one month after Blick pled guilty, but before he was sen-
tenced, the Supreme Court decided Blakely v. Washington, 124 S. Ct.
2531 (2004). In Blakely, the Court considered the constitutionality of
the State of Washington’s determinate sentencing scheme. Blakely
had pled guilty to kidnaping, a felony punishable by a term of not
more than 10 years of imprisonment. Other provisions of Washington
law, comparable to the federal sentencing guidelines ("Guidelines"),
mandated a sentencing range for Blakely of 49 to 53 months, unless
the sentencing judge found aggravating facts justifying an exceptional
sentence. The sentencing judge found that Blakely had acted with
"deliberate cruelty" and therefore sentenced him to 90 months of
imprisonment. Id. at 2534.

   The Court, applying the rule announced in Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (holding that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt"), held that the imposition of the
sentencing enhancement — which was based solely on the sentencing
judge’s factual findings — violated Blakely’s Sixth Amendment
rights because the facts supporting the findings were neither admitted
by Blakely nor found by a jury. 124 S. Ct. at 2536-38. The Court thus
set aside Blakely’s sentence. Id. at 2538. Although the Court
expressed no opinion on the effect its decision may have on the
Guidelines, see id. at 2538 n.9, several dissenting Justices expressed
concern that Blakely necessarily implied the invalidity of important
aspects of the Guidelines. See, e.g., id. at 2550 (O’Connor, J., dissent-
ing); id. at 2561 (Breyer, J., dissenting).2
  2
   These Justices had expressed similar concerns in Apprendi. See, e.g.,
530 U.S. at 544 (O’Connor, J., dissenting).
6                       UNITED STATES v. BLICK
   Shortly after Blakely was decided, we convened en banc in United
States v. Hammoud, to consider Blakely’s impact. Following that
hearing, we entered an order affirming the judgment and holding that
Blakely did not operate to invalidate Hammoud’s sentence under the
Guidelines. United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004).
We also instructed the district courts in this circuit to continue sen-
tencing criminal defendants in accordance with the Guidelines, but we
recommended that they announce, at the time of sentencing, a sen-
tence pursuant to 18 U.S.C. § 3553(a), treating the Guidelines as advi-
sory only. 378 F.3d at 426.

                                  III.

   After we decided Hammoud, a probation officer filed a presentence
report ("PSR") recommending that Blick’s sentencing range was 30-
37 months of imprisonment. The probation officer recommended this
range based on her conclusion that Blick’s criminal history category
was I, and his total offense level was 19. In calculating the total
offense level, the probation officer began with a base offense level of
6, see U.S.S.G. § 2B1.1(a), and added 14 levels because the total
intended loss of Blick’s conduct was $655,000, see U.S.S.G.
§ 2B1.1(b)(1)(H). The probation officer added another two levels for
Blick’s abuse of a position of trust, see U.S.S.G. § 3B1.3, and sub-
tracted three levels for his acceptance of responsibility, see U.S.S.G.
§ 3E1.1(b).

   Before his sentencing hearing, Blick filed a sentencing memoran-
dum and objections to the PSR. Generally, Blick argued that the loss
amount for purposes of the sentence should be zero rather than
$655,000 based on a "net loss" calculation. As he explains in his
appellate brief: "The bottom-line is Blick’s contention that he took his
own money and the net loss to EII is zero." Blick also argued that
under Blakely the district court would not be permitted to enhance his
sentence at all for a loss amount or for abuse of a position of trust.
Despite making this latter argument, Blick acknowledged our holding
in Hammoud.

  During the sentencing hearing, Blick reiterated his "net loss" and
Blakely arguments. The district court rejected these arguments and,
consistent with the recommendation in the PSR, sentenced Blick to
                         UNITED STATES v. BLICK                           7
a term of 30 months of imprisonment and ordered him to pay
$655,000 in restitution to EII.3 The district court did not announce an
alternate sentence under Hammoud. The remaining counts of the
indictment were dismissed, and judgment was entered.

   Despite his agreement not to appeal his sentence, Blick filed this
appeal. In response, the United States moved to dismiss based on
Blick’s appeal waiver. While that motion was pending, the Supreme
Court held in Booker that Blakely applies to the Guidelines and, there-
fore, the Sixth Amendment is violated when a district court imposes
a mandatory sentence under the Guidelines that is greater than the
maximum authorized by the facts found by the jury alone. 125 S. Ct.
at 755. The Court also held, however, that two provisions of the stat-
ute creating the Guidelines system must be excised to make it com-
patible with the Sixth Amendment; this aspect of Booker makes the
Guidelines advisory and their application subject to review for rea-
sonableness. Id. at 764-65. The Court further held that its decision
applies to all cases on direct review, subject to the application of "or-
dinary prudential doctrines." Id. at 769. In light of Booker, we
directed the parties to file briefs addressing the impact, if any, that
decision may have on this appeal.

                                    IV.

   Blick appeals his sentence on two grounds. First, he contends that
the district court erred in calculating the loss amount under U.S.S.G.
§ 2B1.1 because it did not accept his "net loss" theory. Second, he
contends that the district court’s sentencing enhancements for the loss
amount and abuse of a position of trust run afoul of Booker and that
he must therefore be resentenced. The threshold issue we must con-
sider is whether the appeal waiver in Blick’s plea agreement pre-
cludes him from presenting these issues on appeal. For the following
reasons, we conclude that it does.
  3
   The district court did not question the veracity of the evidence prof-
fered by Blick on the "net loss" issue. Instead, the district court rejected
the "net loss" theory, explaining: "[A]s long as you could liquidate any
company . . . and somebody can embezzle at will as long as the liqui-
dated value that they have in the company is greater than what they took,
there is a zero embezzlement. I question that."
8                       UNITED STATES v. BLICK
                                   A.

   A criminal defendant’s right to appeal a sentence arises under 18
U.S.C. § 3742. In United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990), we held that a defendant can waive this right under appropriate
circumstances.

   Wiggins — despite signing a plea agreement that included a waiver
of his right to appeal his sentence — appealed the district court’s
refusal to grant a sentencing reduction for acceptance of responsibil-
ity. Because we found that the appeal waiver was voluntarily and
intelligently made, we dismissed the appeal without addressing the
merits of Wiggins’ argument. Id. at 54. We reasoned that "[i]f defen-
dants can waive fundamental constitutional rights such as the right to
counsel, or the right to a jury trial, surely they are not precluded from
waiving procedural rights granted by statute." Id. at 53 (internal quo-
tation marks and citation omitted). We also observed that because
appeal waivers "preserve[ ] the finality of judgments and sentences
imposed pursuant to valid pleas of guilty," they "should be given their
proper effect," and a defendant who waives his right to appeal for the
purpose of obtaining concessions from the government "may not . . .
ignore his part of the bargain." Id. at 54.

   Since Wiggins, we have consistently adhered to the principle that
sentencing appeal waivers generally are enforceable, and we have
enforced such waivers in a number of cases.4 In doing so, we have
noted that holding a defendant to the plea bargain he struck is not "in-
equitable" because "[u]nlike a defendant who is sentenced after trial,
a defendant who enters a plea bargain has some control over the terms
    4
   See, e.g., United States v. General, 278 F.3d 389, 399-401 (4th Cir.
2002); United States v. Brown, 232 F.3d 399, 402-06 (4th Cir. 2000);
United States v. Brock, 211 F.3d 88, 92 n.6 (4th Cir. 2000); United States
v. Lambey, 974 F.2d 1389, 1393 n.* (4th Cir. 1992) (en banc); United
States v. Marin, 961 F.2d 493, 495-96 (4th Cir. 1992); see also United
States v. Davis, 954 F.2d 182, 185-86 (4th Cir. 1992) (enforcing a waiver
that precluded the defendant from appealing certain convictions); cf.
United States v. Williams, 29 F.3d 172, 174-75 (4th Cir. 1994) (holding
that a defendant who stipulated his drug amounts prior to sentencing
waived his right to appeal on the issue of the drug amounts).
                        UNITED STATES v. BLICK                         9
of his sentence," and if he "wants to ensure that he is sentenced in
strict accordance with the guidelines, he can refuse to waive his right
to appeal as a condition of the plea." Brown, 232 F.3d at 406 (citation
omitted).5 Recently, in United States v. Lemaster, 403 F.3d 216 (4th
Cir. 2005), we extended our general rule concerning appeal waivers
and held that a defendant may waive in a plea agreement his right
under 28 U.S.C. § 2255 to attack his conviction and sentence collater-
ally.

   Whether a defendant has effectively waived the right to appeal is
an issue of law that we review de novo. Marin, 961 F.2d at 496.
Where, as here, the United States seeks enforcement of an appeal
waiver, see Brock, 211 F.3d at 90 n.1 (declining to consider an appeal
waiver that "arguably" barred the appeal on one issue because the
United States "expressly elected not to argue waiver with regard to
this issue"), and there is no claim that the United States breached its
obligations under the plea agreement, see Bowe, 257 F.3d at 342
(holding that the United States’ breach of the plea agreement releases
the defendant from the appeal waiver), we will enforce the waiver to
preclude a defendant from appealing a specific issue if the record
establishes that the waiver is valid and that the issue being appealed
is within the scope of the waiver, United States v. Attar, 38 F.3d 727,
731-33 (4th Cir. 1994).

                                   B.

  The validity of an appeal waiver depends on whether the defendant
knowingly and intelligently agreed to waive the right to appeal. Id. at
  5
   To whatever extent appeal waivers can be considered "inequitable,"
we evened the playing field somewhat in United States v. Guevera, 941
F.2d 1299, 1299 (4th Cir. 1991), where we held that when a defendant
waives the right to appeal in a plea agreement, "such a provision against
appeals must also be enforced against the government." In United States
v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001), we held that "a party’s
waiver of the right to seek appellate review is not enforceable where the
opposing party breaches a plea agreement," and a defendant’s material
breach of the plea agreement releases the United States "from its implied
reciprocal promise under Guevara not to appeal the merits of a judgment
of conviction or sentence."
10                      UNITED STATES v. BLICK
731-32. Although this determination is often made based on the ade-
quacy of the plea colloquy — specifically, whether the district court
questioned the defendant about the appeal waiver — the issue ulti-
mately is "evaluated by reference to the totality of the circumstances."
General, 278 F.3d at 400. Thus, the determination "must depend, in
each case, upon the particular facts and circumstances surrounding
that case, including the background, experience, and conduct of the
accused." Davis, 954 F.2d at 186 (internal quotation marks and cita-
tion omitted).6

   Here, the record fully establishes that Blick knowingly and intelli-
gently waived his right to appeal. The language and meaning of the
appeal waiver — indeed, the plea agreement as a whole — is clear
and unmistakable, and both Blick and his attorneys represented by
their signatures to the plea agreement that Blick had been fully
advised about, and understood, its terms. Moreover, during the plea
colloquy the district court specifically questioned Blick — who has
a college education — about his understanding of the appeal waiver,
and Blick stated that he understood that he was "waiving any right
[he] may have to appeal the sentence that may be imposed." Addition-
ally, the district court found, after conducting the plea colloquy, that
Blick was entering the plea "voluntarily and intelligently." Nothing in
the record before us suggests that the district court’s finding in this
regard is erroneous. For these reasons, we find that the appeal waiver
is valid.

                                   C.

   We must now consider whether the two issues Blick has raised on
appeal fall within the scope of the appeal waiver. The appeal waiver
bars Blick from appealing "any sentence within the maximum pro-
vided in the statute of conviction (or the manner in which that sen-
tence was determined)" on "any ground whatsoever." Therefore, the
scope of the appeal waiver is twofold: (1) Blick cannot appeal on any
ground any sentence within the maximum provided in the statute of
  6
   We have noted that although Fed. R. Crim. P. 11 now requires district
courts to inquire about appeal waivers during the plea colloquy, the fail-
ure to comply with the requirement is subject to plain error review. Gen-
eral, 278 F.3d at 400 n.5.
                         UNITED STATES v. BLICK                         11
conviction, and (2) he cannot appeal on any ground the manner in
which any sentence within the maximum provided in the statute of
conviction was determined. Clearly, the language of this waiver is
exceedingly broad, and (standing alone) it bars Blick from appealing
his sentence unless it is not "within the maximum provided in the stat-
ute of conviction." See United States v. Rubbo, 396 F.3d 1330, 1333
(11th Cir. 2005) ("The general waiver language — ‘all rights con-
ferred by [§ 3742] to appeal any sentence imposed . . . or to appeal
the manner in which the sentence was imposed’ — certainly is broad
enough to cover any issues arising from Apprendi . . . and its progeny,
up to and including Booker.").

   Blick was convicted under 18 U.S.C. § 1343. As Blick correctly
acknowledged in the plea agreement and at his guilty plea hearing, the
maximum sentence under § 1343 is 20 years of imprisonment. Blick’s
30-month sentence is obviously "within the maximum provided in the
statute of conviction."7

  Consequently, we find that the issues Blick has raised on appeal
  7
    We agree with the other circuits which have considered the issue that
the Court’s use of the term "statutory maximum" in Blakely and Booker
does not alter the meaning of the language in the appeal waiver. See
United States v. Green, ___ F.3d ___, 2005 Westlaw 1060608, at *10
(10th Cir. May 6, 2005) ("In holding that the term of art meaning for
‘statutory maximum’ applies in sentencing guidelines cases, the Supreme
Court has not mandated that every time the phrase ‘statutory maximum’
is invoked, the Blakely/Booker definition should apply."); Rubbo, 396
F.3d at 1334 ("The point here is that the definition of ‘statutory maxi-
mum’ the Supreme Court used to describe and explain its holdings in
those cases says nothing about what Rubbo and the government meant
when they used the term ‘the maximum permitted by statute’ in the
appeal waiver. This is not a matter of legal research. It is a question of
the parties’ intent."); United States v. West, 392 F.3d 450, 460 (D.C. Cir.
2004) ("Having consented in such plain terms to sentencing under the
Guidelines, West would have us believe that he nevertheless reserved a
constitutional challenge to the Guidelines through an exceedingly subtle
employment of ‘statutory maximum.’ We find such a reading of the
agreement untenable."); see also United States v. McKinney, ___ F.3d
___, 2005 Westlaw 887153, at *3 n.5 (5th Cir. April 15, 2005) (follow-
ing Rubbo and West).
12                      UNITED STATES v. BLICK
unquestionably fall within the scope of the appeal waiver. In making
his "net loss" argument, Blick is appealing a sentence that is within
the maximum provided in § 1343, and in making his Booker argument
he is appealing the manner in which that sentence was determined.
Blick is therefore attempting to do exactly what the appeal waiver for-
bids.

   We reject Blick’s contention that his reservation of the right "to
contend he is entitled to a credit against the loss" — a right he fully
exercised at his sentencing hearing — allows him to appeal the "net
loss" issue. Moreover, the fact that Blick claims in his "net loss" argu-
ment that the district court erred in its guideline calculation is of no
moment here. As we explained in Brown, an appeal waiver of the type
involved in this case "precludes a claim that the given sentence
resulted from a misapplication of the Guidelines." 232 F.3d at 404.

   We also reject Blick’s contention that he could not have knowingly
waived his rights under Booker — or that his Booker argument is nec-
essarily outside the scope of the appeal waiver — because that case
had not been decided when he entered into the plea agreement. In
doing so, we join with the other circuits that have considered this type
of argument since Booker. See United States v. Lockett, ___ F.3d ___,
2005 Westlaw 1038937, at *5 (3d Cir. May 5, 2005) ("The record
reflects that Lockett knowingly and voluntarily bargained for his plea
agreement. He cannot now ask to re-bargain the waiver of his right
to appeal because of changes in the law."); United States v. Bradley,
400 F.3d 459, 463 (6th Cir. 2005) ("A valid plea agreement . . .
requires knowledge of existing rights, not clairvoyance."); United
States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.), cert.
denied, ___ U.S.L.W. ___ (U.S. May 16, 2005) (No. 04-9566) ("An
appeal waiver includes the waiver of the right to appeal difficult or
debatable legal issues. . . ."); United States v. Killgo, 397 F.3d 628,
629 n.2 (8th Cir. 2005) ("The fact that Killgo did not anticipate the
Blakely or Booker rulings does not place the issue outside the scope
of his waiver.");8 cf. United States v. Sahlin, 399 F.3d 27, 30-31 & n.3
  8
    See also Green, 2005 Westlaw 1060608, at **7-10; United States v.
Cardenas, ___ F.3d ___, 2005 Westlaw 1027036, at *2 (9th Cir. May 4,
2005); United States v. Morgan, ___ F.3d ___, 2005 Westlaw 957186,
at **1-2 (2d Cir. Apr. 27, 2005); United States v. Bownes, 405 F.3d 634,
636-38 (7th Cir. 2005).
                        UNITED STATES v. BLICK                       13
(1st Cir. 2005) (rejecting as "frivolous," in the context of an attempt
to withdraw a guilty plea, the defendant’s argument that his plea was
not knowing and voluntary because he did not anticipate Booker); see
generally United States v. Ruiz, 536 U.S. 622, 629 (2002) ("And the
law ordinarily considers a waiver knowing, intelligent, and suffi-
ciently aware if the defendant fully understands the nature of the right
and how it would likely apply in general in the circumstances — even
though the defendant may not know the specific detailed conse-
quences of invoking it.") (emphasis in original).

                                  D.

   Notwithstanding the foregoing, Blick contends that his Booker
argument is not within the scope of his appeal waiver based on a prin-
ciple we first announced in Marin: i.e., "a defendant who waives his
right to appeal does not subject himself to being sentenced entirely at
the whim of the district court." 961 F.2d at 496.9 Applying this princi-
ple, we have refused to enforce valid appeal waivers for a "narrow
class of claims," Lemaster, 403 F.3d at 220 n.2, based on our determi-
nation that those claims were not within the scope of the waiver.10

   For example, the defendants in Attar waived their right to appeal
"whatever sentence is imposed." 38 F.3d at 729. After the defendants
pled guilty, a conflict developed between the defendants and their
  9
   We continued: "For example, a defendant could not be said to have
waived his right to appellate review of a sentence imposed in excess of
the maximum penalty provided by statute or based on a constitutionally
impermissible factor such as race." 961 F.2d at 496. Nonetheless, this
language appears to be dicta because we held that the sentence being
appealed in that case "is not such a sentence." Id.
  10
     As noted, we analyze appeal waivers under a two-part analysis by
which we consider the validity and the scope of the waiver. We note that
some other circuits analyze appeal waivers under a three-part analysis.
See, e.g., United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004);
United States v. Andis, 333 F.3d 886, 891-92 (8th Cir. 2003). These cir-
cuits consider the validity and scope of the waiver, and also whether
enforcement of the waiver will result in a miscarriage of justice.
Although we have not used the term miscarriage of justice in analyzing
appeal waivers, the concept seems to be subsumed within our analysis of
the scope of the waiver.
14                      UNITED STATES v. BLICK
attorneys, and the attorneys moved to withdraw and to continue the
sentencing. The district court denied the motions and ordered the
defendants to appear for their sentencing hearing. At the sentencing
hearing, however, the district court permitted the attorneys to with-
draw, but it did not discuss with the defendants the perils of proceed-
ing pro se or ensure that they wanted to proceed in that manner.

   On appeal, the defendants argued that their sentences should be set
aside because the proceedings following their guilty pleas — includ-
ing the sentencing hearing — "were conducted in violation of their
Sixth Amendment right to counsel." Id. at 731. The United States
moved to dismiss the appeal "because the defendants waived all rele-
vant appeal rights in the plea agreement." Id. Although we found that
the appeal waiver was "generally valid and enforceable," we noted
that "the real dispute" was not about its validity, but about its scope.
Id. at 732. Referring to Marin, we stated that we did not think that a
defendant who agreed to a general appeal waiver "can fairly be said
to have waived his right to appeal his sentence on the ground that the
proceedings following entry of the guilty plea were conducted in vio-
lation of his Sixth Amendment right to counsel, for a defendant’s
agreement to waive appellate review of his sentence is implicitly con-
ditioned on the assumption that the proceedings following entry of the
plea will be conducted in accordance with constitutional limitations."
Id. We continued:

     In this case, defendants do not seek to challenge their sen-
     tences on the ground that they rest on an improper applica-
     tion of the guidelines or a violation of some procedural rule,
     as did the defendant in Marin. Instead, they seek to chal-
     lenge their sentences on the ground that the proceedings fol-
     lowing entry of the guilty plea — including both the
     sentencing hearing itself and the presentation of the motion
     to withdraw their pleas — were conducted in violation of
     their Sixth Amendment right to counsel. We do not think the
     general waiver of appeal rights contained in this plea agree-
     ment can fairly be construed as a waiver of the right to chal-
     lenge their sentences on that ground. Accordingly, we
     decline to dismiss this appeal, and proceed instead to its
     merits.
                         UNITED STATES v. BLICK                         15
                                   11
Id. at 732-33 (citations omitted).

   Similarly, in United States v. Broughton-Jones, 71 F.3d 1143 (4th
Cir. 1995), we held that a valid appeal waiver in which Broughton-
Jones waived her right to appeal her sentence on the grounds set forth
in § 3742 did not preclude her from asserting on appeal that a restitu-
tion order (to which she had informally agreed) was not authorized by
the applicable statute. Broughton-Jones had been charged with wire
fraud and perjury, and she pled guilty only to one count of perjury.
The district court sentenced her, among other things, to pay restitution
to the wire fraud victim.

   We concluded that the issue raised by Broughton-Jones fell outside
the scope of the appeal waiver. Id. at 1146-47. We noted that the stat-
ute authorizing restitution limited such relief only for losses traceable
to a defendant’s offense of conviction, and the crime for which
Broughton-Jones was convicted — perjury — did not cause any pecu-
niary harm to the restitution victim. Id. at 1147. Again, looking to
Marin, we held that her challenge to the restitution order was outside
the scope of her appeal waiver because it involved a claim that the
sentence was "illegal." Id.

   Notwithstanding some rather broad language in those opinions, we
do not believe that the actual holdings of those cases compel the con-
clusion that Blick’s arguments must be considered to be outside the
scope of his appeal waiver, and we decline to extend those holdings
in this case.12 In both of those cases, the errors allegedly committed
by the district courts were errors that the defendants could not have
reasonably contemplated when the plea agreements were executed.
  11
     On the merits, we affirmed the defendants’ sentences. Although a
defendant certainly can waive the right to counsel at a sentencing pro-
ceeding, see generally Faretta v. California, 422 U.S. 806, 807 (1975)
(holding that a defendant has a right to proceed pro se at trial), we did
not base our decision on that principle. Instead, we held that the district
court did not abuse its discretion in refusing to grant the defendants a
continuance. Attar, 38 F.3d at 733-35.
  12
     We fail to see under any circumstance how Blick’s "net loss" argu-
ment — which simply goes to the propriety of the Guidelines calculation
— is affected by Marin, Attar, or Broughton-Jones.
16                         UNITED STATES v. BLICK
Thus, it was not reasonable (or fair) to say that in agreeing to waive
their appeal rights, the Attar defendants were agreeing to be sentenced
without counsel, or Broughton-Jones was agreeing to be sentenced to
an unauthorized restitution order. That simply was not part of the bar-
gain they struck with the United States.

   Blick’s situation is entirely different. Unlike the defendants in
those cases, Blick not only agreed to waive his right to appeal "any
sentence within the maximum provided in the statute of conviction (or
the manner in which that sentence was determined)" on "any ground,"
but he also agreed that he would be sentenced in accordance with the
Guidelines.13 Thus, at the time he entered the plea agreement, both
Blick and the United States expressly contemplated and agreed that
he would be sentenced in exactly the manner in which he was, in fact,
sentenced: the pre-Booker Guidelines system. Although the law
changed after Blick pled guilty, his expectations (as reflected in the
plea agreement) did not. See Bradley, 400 F.3d at 466 ("Bradley’s
willingness to be sentenced under the Guidelines and generally to
waive his right to appeal binds him no less now than it did when he
signed the agreement."). Thus, far from being sentenced "at the whim
of the district court," Blick was sentenced precisely in the manner that
he anticipated. Had Blick desired to retain the right to raise an
Apprendi-type claim (or any sentencing claim) on appeal, he could
have opted not to agree to the appeal waiver.14

                                       V.

   "Plea bargains rest on contractual principles, and each party should
receive the benefit of its bargain." United States v. Ringling, 988 F.2d
504, 506 (4th Cir. 1993). Blick knowingly and intelligently agreed to
waive his right to appeal on any ground his sentence and the manner
  13
      Moreover, Blick stated at his guilty plea hearing that he understood
"that by pleading guilty, the Court may impose the same punishment as
if [he] had been tried and convicted by a court or by a jury."
   14
      In United States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002), we
held that the defendant waived his Apprendi claim by raising it in a Rule
28(j) letter rather than in his initial brief. If, as in that case, a defendant’s
inadvertence can operate as a waiver of an Apprendi-type issue, certainly
a defendant’s negotiated appeal waiver can do so.
                        UNITED STATES v. BLICK                         17
in which he was sentenced in exchange for several concessions made
by the United States, and he was sentenced in the manner to which
he agreed. The United States has adhered to its part of the plea bar-
gain. Allowing Blick to appeal on the issues he has raised, under these
circumstances, would unfairly deny the United States an important
benefit of its bargain.15

   For all of the foregoing reasons, we hold that Blick’s appeal waiver
is valid and that the issues he has raised on appeal are within the
scope of the waiver. Accordingly, we grant the United States’ motion
and dismiss this appeal.

                                                            DISMISSED

MICHAEL, Circuit Judge, dissenting:

   Under his plea agreement with the government, George Blick pled
guilty to one count of wire fraud and waived his right to appeal. The
district court made findings of fact under the then-mandatory sentenc-
ing guidelines and sentenced Blick to thirty months in prison.
Because Blick could not have received this sentence based solely on
the facts he admitted in the plea agreement, the sentence was imposed
in violation of his Sixth Amendment rights. See United States v.
Booker, 125 S.Ct. 738 (2005). The majority holds that Blick’s appeal
waiver precludes him from challenging his unconstitutional sentence.
I respectfully dissent because a defendant in this circuit cannot pro-
spectively waive the right to appeal constitutional violations at sen-
tencing. See United States v. Attar, 38 F.3d 727 (4th Cir. 1994).

  15
    We note also that allowing Blick to appeal under these circumstances
would upset the balance we mandated in Guevera — i.e., the United
States’ implicit agreement to be bound by Blick’s appeal waiver. As the
Sixth Circuit recognized: "Simultaneous waivers of the right to appeal by
two parties to a plea agreement, as here, would amount to little if future
changes in the law permitted the benefitted party nonetheless to appeal."
Bradley, 400 F.3d at 465.
18                     UNITED STATES v. BLICK
                                  I.

    Blick was a one-third owner and CEO of Enterprise Integration,
Inc. (EII), an information systems consulting firm. In early 2003
Blick was conned by a man claiming to be a Nigerian official who
could, with some help from Blick, embezzle $20.5 million from the
Nigerian government in connection with a government contract. The
man promised to share the booty with Blick if Blick (1) would
advance monies necessary to facilitate the scheme and (2) allow one
of his companies to be designated as "the rightful recipient of the
money." J.A. 96. Blick wired over $2,000,000 to the con artist, fund-
ing the advances in large part with unauthorized withdrawals from
EII’s bank account. Blick repaid some of the money, but by October
2003 so much was missing that EII was in danger of not making pay-
roll. Blick then informed his co-owners about his unauthorized with-
drawals, and his co-owners contacted the authorities. On January 6,
2004, Blick was indicted on seven counts of wire fraud. Blick ulti-
mately entered into a written plea agreement with the government and
pled guilty to one count. The government agreed to dismiss the
remaining counts. The plea agreement included the following appeal
waiver: "the defendant knowingly waives the right to appeal the con-
viction and any sentence within the maximum provided in the statute
of conviction (or the manner in which that sentence was determined)
. . . on any ground whatsoever, in exchange for the concessions made
by the United States in this plea agreement." J.A. 34-35.

   On June 6, 2004, after Blick pled guilty but before he was sen-
tenced, the Supreme Court decided Blakely v. Washington, 124 S. Ct.
2531 (2004), which cast doubt on the constitutionality of the sentenc-
ing guidelines. At sentencing the district court made a factual finding
that Blick’s actions resulted in a loss of $655,000 to EII and added
fourteen levels to Blick’s base offense level under the guidelines.
With the fourteen-level enhancement and other adjustments taken into
account, the sentencing range was thirty to thirty-seven months. With-
out the fourteen-level enhancement, the sentencing range would have
been zero to six months. Blick received a thirty-month sentence. He
objected to the enhancement on the grounds that the imposition of a
sentence greater than the maximum authorized by the facts admitted
in the plea agreement was a violation of his Sixth Amendment rights
under Blakely. Blick also moved the court to stay execution of the
                        UNITED STATES v. BLICK                         19
judgment until the resolution of Booker, which was pending before
the Supreme Court at the time of his sentencing. The district court
denied Blick’s motions but told him that if the Supreme Court’s deci-
sion in Booker "affect[ed him]," the court would promptly entertain
a motion to reconsider. J.A. 76. Blick filed an appeal to this court
prior to the Supreme Court’s Booker decision. He argues in his sup-
plemental brief that he is entitled to a remand for resentencing in light
of Booker and United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). The government contends that the appeal waiver bars Blick’s
appeal.

                                   II.

   In United States v. Attar we held that a defendant cannot "fairly be
said to have waived his right to appeal his sentence on the ground that
the proceedings following entry of the guilty plea were conducted in
violation of his Sixth Amendment right to counsel, for a defendant’s
agreement to waive appellate review of his sentence is implicitly con-
ditioned on the assumption that the proceedings following entry of the
plea will be conducted in accordance with constitutional limitations."
38 F.3d at 732. We have also held that an appeal waiver "will not bar
appeal of a sentence when the sentence was . . . based on a constitu-
tionally impermissible factor . . . ." United States v. Brown, 232 F.3d
399, 403 (4th Cir. 2000); see also United States v. Broughton-Jones,
71 F.3d 1143, 1147 (4th Cir. 1995) (same), United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992) (same). Blick’s sentence was based
on a "constitutionally impermissible factor," that is, it was based on
facts found by the district court in violation of the Sixth Amendment.
Likewise, Blick’s sentencing hearing was not "conducted in accor-
dance with constitutional limitations" because judicial factfinding that
subjects a defendant to a sentence greater than that allowed by the
plea bargain or jury verdict alone is unconstitutional. Accordingly,
Attar and Brown prevent a defendant from prospectively waiving his
right to challenge an unconstitutional sentence or sentencing proce-
dure.

   Attar’s rule against prospective waiver of the right to appeal consti-
tutional violations at sentencing is consistent with the general rule that
circumscribes the waiver of constitutional rights. "The relevant princi-
ple is well established: a promise [to waive a constitutional right] is
20                      UNITED STATES v. BLICK
unenforceable if the interest in its enforcement is outweighed in the
circumstances by a public policy harmed by enforcement of the agree-
ment." Town of Newton v. Rumery, 480 U.S. 386, 392 (1987); see
also id. at 392 n.2. The public policy behind the jury trial right
applied in Booker is the centuries-old policy of "guard[ing] against a
spirit of oppression and tyranny on the part of rulers" and govern-
ments. Booker, 125 S.Ct. at 753 (quoting Apprendi v. New Jersey, 530
U.S. 466, 477 (2000)). This public policy is harmed when enforce-
ment of an appeal waiver agreement results in an unremedied viola-
tion of the jury trial right, a "constitutional [right] of surpassing
importance." Apprendi, 530 U.S. at 476. This harm outweighs the
interest in enforcing the agreement.

   It is true that a defendant may waive constitutional rights as part
of his decision to forego a trial. In that context, however, waiver or
"[r]elinquishment derives . . . from the admissions necessarily made
upon entry of a voluntary plea of guilty." United States v. Broce, 488
U.S. 563, 573-74 (1989) (emphasis added). Thus, the waiver of trial
rights in a plea proceeding does not create the same risk of unreme-
died constitutional violations that exists when a defendant waives the
right to appeal from a proceeding that has not yet taken place. For
example, although a defendant waives his Sixth Amendment right to
a jury trial by entering into a plea agreement, his Sixth Amendment
rights are not violated in the plea proceeding. Similarly, if a defendant
decides not to challenge the validity of a search or a confession before
entering into a plea agreement, it is presumed that he has determined
either that his rights were not violated and a challenge would be
pointless or that the suppression of evidence would not significantly
help his case on the merits. In other words, "[a] plea of guilty and the
ensuing conviction comprehend all of the factual and legal elements
necessary to sustain a binding, final judgment of guilt . . . ." Id. at
569. Although trial rights are waived, a defendant’s own admissions
ensure the reliability of the conviction and protect against the dangers
of unremedied constitutional violations.

   By contrast, appeal waivers are not based on a defendant’s admis-
sion of guilt. In the context of an appeal waiver, the defendant agrees
not to appeal a sentencing court’s factual, statutory, or constitutional
rulings before they have even been made (presumably in exchange for
a concession by the government). Thus, the defendant’s agreement
                        UNITED STATES v. BLICK                       21
provides no assurance that the court’s subsequent determinations will
be correct or that the sentence or sentencing procedures will be con-
stitutional. We generally permit defendants to waive their right to
appeal factual and legal determinations at sentencing in the interest of
finality, see United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir.
1990), but Attar establishes that some limits are required. The waiver
of the right to appeal errors in a proceeding that has yet to occur pre-
sents a substantial risk of unremedied constitutional violations that
would "impair[ ] to an appreciable extent . . . the policies behind the
rights involved." Town of Newton, 480 U.S. at 392 n.2. For this rea-
son, Attar wisely held that the waiver of appellate review "is implic-
itly conditioned on the assumption that the proceedings following
entry of the plea will be conducted in accordance with constitutional
limitations." 38 F.3d at 732.

   The majority concludes that Attar does not require us to consider
Blick’s constitutional claim because that decision only prevents a
defendant from waiving the right to appeal constitutional errors that
are not "reasonably contemplated when the plea agreement[ ] [was]
executed" or are "not part of the bargain [the defendant] struck with
the United States." Ante at 15-16. Nothing in Attar, however, suggests
that the rule precluding waiver of the right to appeal an unconstitu-
tional sentence is limited to only unforeseen constitutional violations.
Nevertheless, the majority appears to be saying that a defendant can
subject himself to constitutional violations at sentencing so long as
they are reasonably contemplated by the plea agreement. Under this
approach, for example, a defendant could be sentenced without the
assistance of counsel (or even pro se representation) if he consented
to that in the plea agreement. Not only is this prospect disturbing, it
violates the public policy behind the Sixth Amendment right to coun-
sel.

   The majority’s analysis ignores a fundamental point: the rule in
Attar and Brown serves to place certain limits on the rights the gov-
ernment can demand that a defendant waive, regardless of the literal
terms of the waiver agreement. The rule that an appeal waiver is con-
ditioned on a constitutional sentencing proceeding is based on the
principle that "a defendant who waives his right to appeal does not
subject himself to being sentenced entirely at the whim of the district
court." Marin, 961 F.2d at 496. Even a defendant who signs a blanket
22                      UNITED STATES v. BLICK
appeal waiver "retains the right to obtain appellate review of his sen-
tence on certain limited grounds." Attar, 38 F.3d at 732.

   I agree with the majority that Blick’s decision to enter into the plea
agreement was not rendered unknowing or involuntary because of
Booker. "[A] voluntary plea of guilty intelligently made in the light
of the then applicable law does not become vulnerable because later
judicial decisions indicate that the [decision to enter into the] plea
rested on a faulty premise." Brady v. United States, 397 U.S. 742, 757
(1970). Under this rule a defendant may not rely on changes in the
law to mount an attack on the validity of his guilty plea. This princi-
ple has led every other circuit that has addressed the issue to conclude
that a defendant may waive his right to appeal a Booker error. See
ante at 12-13 (collecting cases). In this circuit, however, we must
abide by Attar, which holds that a defendant cannot prospectively
waive the right to appeal constitutional violations at sentencing, even
when the waiver is knowing and voluntary. Thus, while I agree that
Booker does not render Blick’s decision to enter into a plea agreement
involuntary, under Attar his appeal waiver was "implicitly condi-
tioned on the assumption that the [sentencing] proceedings following
entry of [his] plea [would] be conducted in accordance with constitu-
tional limitations." 38 F.3d at 732. Because Blick’s sentence was
enhanced by judge-found facts under a then-mandatory sentencing
scheme, his sentence violated the Sixth Amendment.

   The government points out that it made concessions to Blick (drop-
ping six counts, for example) in exchange for his agreement to waive
his appeal rights. Accordingly, the government argues that it would
be denied the benefit of its bargain if Blick is resentenced on the one
count. This is a valid point. Still, Blick’s unconstitutional sentence
cannot stand. I would therefore vacate the sentence and accord the
government the option on remand to withdraw from the plea agree-
ment. If the government withdrew from the plea agreement, both the
agreement and Blick’s guilty plea would be void. The parties would
then start over with the seven-count indictment.
