UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4765

AFENI TANIKA BERRY RUCKER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-7-PJM)

Submitted: July 29, 1997

Decided: September 11, 1997

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Charles F. Daum, Arlington, Virginia, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Stephen S. Zimmermann, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Afeni Berry Rucker pled guilty to conspiracy (18 U.S.C. § 371
(1994)) (Count One) and misappropriation of postal funds (18
U.S.C.A. § 1711 (West Supp. 1997)) (Count Three). She received a
sentence of four months imprisonment and a two-year term of super-
vised release, with the first four months of the supervised release term
to be served in home confinement. Rucker seeks to appeal her sen-
tence, alleging that her waiver of appeal rights was not knowing and
voluntary, that the district court clearly erred in finding that she had
obstructed justice, USSG § 3C1.1,1 and abused a position of trust,
USSG § 3B1.3, and that the government violated the plea agreement
by failing to oppose the adjustment for obstruction of justice. She also
contends that the court's sua sponte decision to make the obstruction
of justice adjustment violated due process by denying her adequate
notice that her sentence might be increased on this ground. The gov-
ernment seeks dismissal of the appeal based on Rucker's waiver, in
her plea agreement, of her right to appeal the sentence and issues
relating to establishment of the guideline range, and reserving only
the right to appeal an upward departure. We find that the waiver was
valid and that Rucker's due process rights were not implicated by the
sua sponte adjustment. We therefore dismiss the appeal.

Under the terms of Rucker's plea agreement, she was subject to a
nine-level loss enhancement and a two-level adjustment for more than
minimal planning, and was entitled to a two-level adjustment for
acceptance of responsibility. The agreement stated that the district
court was not bound by the agreement or obligated to accept the gov-
ernment's sentencing recommendations. The waiver provision was
brought to Rucker's attention by the district court at the Fed. R. Crim.
P. 11 hearing.

At the first sentencing hearing, the district court sua sponte deter-
mined that Rucker obstructed justice during the investigation of her
offense by falsely telling the postal investigators that her co-
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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defendant, Michelangelo Carroll, had devised the scheme in which
she participated. The government attorney agreed that Rucker initially
lied to the investigators, but pointed out that she provided truthful
information after her guilty plea and testified truthfully at Carroll's
trial. In an effort to honor its obligations under the plea agreement,
the government did not argue for an obstruction of justice adjustment.
On appeal, the government continues to take no position on this issue.
Because defense counsel received the government's memorandum
requesting an adjustment for abuse of a position of trust on the morn-
ing of sentencing, the district court continued sentencing to allow
counsel to prepare an argument on that issue. At the second sentenc-
ing hearing, the court again made a finding that Rucker had
obstructed justice and also found that she had abused a position of trust.2

A defendant's waiver of the right to appeal as part of a plea agree-
ment is enforceable if it is the result of a knowing and intelligent deci-
sion. See United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994).
Rucker contends that her waiver was not knowing and voluntary
because she believed she could appeal the application of any adjust-
ments which were not spelled out in the plea agreement. However,
there is nothing in Rucker's plea agreement or in the record of her
plea hearing which indicates that her guilty plea was conditioned on
such an understanding. Our review of the Rule 11 hearing discloses
that Rucker knowingly and voluntarily waived her right to appeal her
sentence. Therefore, review is available only for claims that the sen-
tence was imposed in excess of the statutory maximum or was based
on a constitutionally impermissible factor such as race. See United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

Rucker challenges on due process grounds the district court's deci-
sion to make an adjustment for obstruction of justice without giving
her advance notice that it was considering the adjustment. She relies
on Burns v. United States, 501 U.S. 129 (1991). Burns held that,
under Fed. R. Crim. P. 32, a sentencing court may not depart from the
guideline range without giving the defendant adequate notice that a
departure is being contemplated and the grounds on which it may be
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2 Rucker also received a two-level enhancement for more than minimal
planning, a two-level downward adjustment for acceptance of responsi-
bility, and a two-level downward departure for substantial assistance.

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made. Burns does not address sua sponte adjustments made in the
course of calculating the guideline range. However, two circuits have
interpreted Rule 32 and Burns as also requiring prior notice before a
sua sponte adjustment or enhancement, at least in some circum-
stances. See United States v. Zapatka, 44 F.3d 112, 115-16 (2d Cir.
1994) (extending notice requirement to apply where adjustment not
recommended, factual dispute existed as to defendant's conduct, and
it was unclear which guideline supported enhancement); United States
v. Jackson, 32 F.3d 1101, 1108-13 (7th Cir. 1994) (two judges con-
curred in judgment vacating sentence, but only one held that defen-
dant entitled to advance notice of sua sponte adjustment).

Other circuit courts have held that Rule 32 and Burns do not
require advance notice of sua sponte adjustments to the guideline cal-
culation, at least where the facts relevant to the adjustment are known
to the defendant, because the bases for adjustments are limited and are
set out in the guidelines. See United States v. Knight, 76 F.3d 86, 88
(5th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3837 (U.S. June
17, 1996) (No. 95-9000); United States v. Willis , 997 F.2d 407, 416-
17 (8th Cir. 1993); United States v. Canada, 960 F.2d 263, 265-68
(1st Cir. 1992). Following these authorities, we find that Rucker was
not denied due process when the district court made a sua sponte
adjustment for obstruction of justice in her case. Rucker was aware
that she lied to investigators about the extent of Carroll's involve-
ment.

Rucker also contends that the waiver does not preclude her from
contesting the adjustment for abuse of a position of trust because it
is an illegal application of the guidelines in that the district court
failed to make adequate findings. This claim alleges nothing more
than an improper application of the guidelines and is within the scope
of the waiver. In any case, the district court explained its decision at
some length.

Finally, Rucker argues that the government violated the plea agree-
ment when it failed to oppose an adjustment for obstruction of justice.
However, the record of the sentencing hearing reveals that the gov-
ernment was careful to abide by its obligations under the agreement.

Because Rucker's waiver was valid and the adjustments she seeks
to appeal are within the scope of the waiver, we dismiss the appeal.

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

DISMISSED

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