                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-5221


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEVINO PATERA PUTNEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (4:08-cr-00038-FL-1)


Submitted:   March 26, 2010                  Decided:   May 6, 2010


Before MICHAEL, * MOTZ, and AGEE, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Terry F. Rose, Smithfield, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.



     *
       Judge Michael was a member of the original panel but did
not participate in this decision.    This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Devino      Patera   Putney        pled   guilty     to   conspiracy       to

distribute and possess with intent to distribute fifty or more

grams of cocaine base, five or more kilograms of cocaine, and

more than 100 kilograms of marijuana, in violation of 21 U.S.C.

§§   841(a)(1), 846 (2006).           The district court sentenced Putney

to 235 months’ imprisonment.

            Putney appeals, challenging the three-level leadership

enhancement      imposed     under    the       Sentencing       Guidelines.          The

Government     filed    a   motion    to    dismiss,       asking     this    court    to

enforce the appellate waiver in Putney’s plea agreement.                        Putney

filed a response, arguing the waiver is invalid for two reasons:

first,   the    sentence     constitutes        cruel     and    unusual     punishment

under    the    Eighth      Amendment;         and    second,     the      waiver     was

involuntary and unknowing because Putney did not know what his

Sentencing Guidelines calculation would be at the time of the

plea.

            A defendant may, in a valid plea agreement, waive his

appellate      rights    under   18    U.S.C.         §   3742    (2006).        United

States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                          We review

the validity of an appellate waiver de novo and will enforce the

waiver if it is valid and the issue appealed is within the scope

thereof.       United States v. Blick, 408 F.3d 162, 171 (4th Cir.



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2005).       An appeal waiver is valid if the defendant knowingly and

intelligently agreed to the waiver.                      Id. at 169.

              To     determine       whether        the       waiver       is     knowing     and

intelligent,         the     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).         Generally,         if    the    district        court

fully questions the defendant about the waiver during the Rule

11    colloquy,      the     waiver    is     valid       and     enforceable.           United

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

              We believe Putney’s appeal waiver forecloses his claim

that    his    sentence       constitutes          cruel      and     unusual       punishment.

Insofar as Putney now challenges the voluntariness of his plea,

we    also    find    his    argument     unavailing.               The    magistrate        judge

conducted a thorough plea colloquy, including a discussion of

the    appellate       waiver.         At     sentencing,            the     district       court

referred      to     the    waiver,     and       Putney      did      not       challenge    the

voluntariness of his plea.                Therefore, we find Putney’s plea was

voluntarily and intelligently made.

              For    the     above     reasons,          we   grant        the    Government’s

motion and dismiss Putney’s appeal of his sentence.                                  Insofar as

Putney challenges his conviction, we affirm.                               We dispense with

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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 IN PART;
                                                             AFFIRMED IN PART




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