                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-4087


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES S. JONES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:07-cr-00008-HEH-1)


Submitted:   July 31, 2013                 Decided:   August 21, 2013


Before DUNCAN, AGEE, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Mark Bodner, Fairfax, Virginia,         for Appellant.   Olivia L.
Norman, OFFICE OF THE UNITED            STATES ATTORNEY, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               In 2007, Charles Sherrod Jones pled guilty, pursuant

to a written plea agreement, to conspiracy to distribute and

possess with intent to distribute fifty grams or more of cocaine

base, in violation of 21 U.S.C. § 846 (2006), and the district

court     sentenced       him      as    a      career       offender        to    275    months’

imprisonment.          In     2010,       the        district      court      reduced      Jones’

sentence to 193 months’ imprisonment pursuant to Fed. R. Crim.

P. 35(b)(2).          Jones subsequently filed a motion to vacate his

sentence       pursuant      to    28    U.S.C.A.        §   2255       (West     Supp.    2013),

arguing that he was improperly sentenced as a career offender.

In   2012,     the    district          court    granted        Jones’       §    2255    motion,

finding    that      Jones      did     not     possess      the    requisite        two    prior

felony    convictions        in    order        to    qualify      as    a   career      offender

pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1

(2012).      After appointing counsel to represent Jones and hearing

arguments      from    both       parties,       the     district       court      re-sentenced

Jones to 98 months’ imprisonment.

               Jones now appeals.             His counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting that

there    are    no    meritorious         grounds        for    appeal       but    questioning

whether      the     district         court      committed         procedural         error   in

calculating Jones’ Guidelines range because it included Jones’

2002 uncounseled, consolidated state court convictions in his

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criminal history score.                Jones has filed a supplemental pro se

brief arguing that his waiver of the right to counsel in his

2002    consolidated         state     court      convictions    violated        the    Sixth

Amendment because his waiver was not knowing and intelligent.

Jones further argues that the district court plainly erred when

it used the 2002 convictions to calculate his criminal history

score.        The Government has filed a motion to dismiss Jones’

appeal of his sentence based on the appellate waiver provision

in the plea agreement.             We grant the motion to dismiss.

              We review de novo a defendant’s waiver of appellate

rights.       United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).        “A defendant may waive his right to appeal if that

waiver is the result of a knowing and intelligent decision to

forgo the right to appeal.”                    United States v. Amaya-Portillo,

423    F.3d    427,    430     (4th    Cir.    2005)     (internal      quotation       marks

omitted).        To     determine       whether      the   waiver       is   knowing     and

intelligent,          this     court       looks     “to   the        totality     of    the

circumstances,         including       the     experience       and    conduct     of    the

accused, as well as the accused’s educational background and

familiarity      with        the   terms     of    the   plea   agreement.”            United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal

quotation marks omitted).

              Our review of the record leads us to conclude that

Jones knowingly and voluntarily waived the right to appeal his

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sentence.       The    issue     raised       by    Jones     and    his     counsel,

questioning     whether    the   district          court    committed      procedural

error   in   calculating    Jones’   Guidelines            range,   is     within   the

scope of the waiver.

             Jones    contends    that       enforcement      of     his    appellate

waiver would constitute a miscarriage of justice.                        We disagree.

“[W]e have refused to enforce valid appeal waivers for a narrow

class of claims, . . . based on our determination that those

claims were not within the scope of the waiver.”                           Blick, 408

F.3d at 171 (internal quotation marks omitted).                     For example, we

refuse to enforce a valid appellate waiver when an appellant

challenges “a sentence imposed in excess of the maximum penalty

provided by statute or based on a constitutionally impermissible

factor such as race,” United States v. Marin, 961 F.2d 493, 496

(4th Cir. 1992), or when an appellant challenges a “sentence on

the ground that the proceedings following entry of the guilty

plea were conducted in violation of his Sixth Amendment right to

counsel.”     United States v. Attar, 38 F.3d 727, 732 (4th Cir.

1994); see United States v. Johnson, 410 F.3d 137, 151 (4th Cir.

2005) (summarizing holdings in Marin and Attar).                    We “‘refuse to

enforce an otherwise valid waiver if to do so would result in a

miscarriage of justice.’”          Johnson, 410 F.3d at 151 (quoting

United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003)).



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              Here,     Jones’         argument      that     his    2002     uncounseled,

consolidated        state         court       convictions         violated        his     Sixth

Amendment     right     to    counsel         asserts   a    violation       by    the    state

court, but does not amount to a constitutional violation by the

district court.           Because Jones’ challenge regards the district

court’s      calculation          of    his    Guidelines         range,     there       is    no

miscarriage        of   justice        sufficient       to   overcome       the    appellate

waiver.      See Andis, 333 F.3d at 892 (describing “miscarriage of

justice” exception as “extremely narrow,” and noting that “an

allegation that the sentencing judge misapplied the Sentencing

Guidelines . . . is not subject to appeal in the face of a valid

appeal waiver”).          Consequently, appellate review of the district

court’s calculation of Jones’ Guidelines range is foreclosed.

              Pursuant to Anders, we have reviewed the entire record

and   have    found     no    unwaived         issues    that     are   meritorious           and

outside      the   scope      of       the    waiver.        We   therefore       grant        the

Government’s motion to dismiss the appeal of Jones’ sentence.

This court requires that counsel inform Jones, in writing, of

the right to petition the Supreme Court of the United States for

further review.         If Jones 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 Jones.

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            We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                    DISMISSED




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