                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4433


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ZEE ZEE ZELAZURRO,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-01076-RBH-1)


Submitted:   March 31, 2011                 Decided:   April 4, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Zee     Zee     Zelazurro         pled      guilty     to    assaulting      a

correctional officer.             Pursuant to a stipulation in the plea

agreement under Fed. R. Crim. P. 11(c)(1)(C), the district court

sentenced     Zelazurro      to     forty     months        in   prison.     On   appeal,

Zelazurro’s       counsel    filed        a   brief      pursuant       to    Anders   v.

California, 386 U.S. 738 (1967), in which he asserts that there

are   no   meritorious      issues     for        appeal,    but   questions      whether

Zelazurro’s presentence report properly concluded that he was a

career offender.        For the reasons that follow, we affirm in part

and dismiss in part.

            We    are     without    jurisdiction           to   address     Zelazurro’s

claimed    sentencing       error.    Under        18   U.S.C.     §    3742(a)(1)     and

(a)(2) (2006), a defendant may appeal when the sentence “was

imposed in violation of law [or] was imposed as a result of an

incorrect        application         of       the       sentencing           guidelines.”

Subsections (a)(3) and (a)(4) permit an appeal of a sentence

that is greater than the Guidelines range or a sentence “imposed

for an offense for which there is no sentencing guideline and is

plainly unreasonable.” 18 U.S.C. § 3742(a)(3), (a)(4) (2006).

However, if, as here, a defendant has pled guilty pursuant to a

plea agreement that includes a specific sentence, he may only

pursue an appeal under subsections (a)(3) and (a)(4) when “the

sentence imposed is greater than the sentence set forth in such

                                              2
agreement.” 18 U.S.C. § 3742(c)(1) (2006).                          The district court

imposed    a     sentence     of     forty          months,     the      exact     term    of

imprisonment      specified    in        the       plea    agreement.        Because      the

sentence imposed was not greater than the stipulated sentence,

Zelazurro may appeal only pursuant to subsections (a)(1) and

(a)(2).     We conclude that the issues he seeks to raise do not

fall within the parameters of § 3742(a)(1) or (a)(2).

            First,     Zelazurro’s             sentence       was     not    imposed      in

violation of the law.          Zelazurro faced a statutory maximum term

of eight years; there was no governing statutory minimum.                                 The

forty    month    sentence    imposed          on   Zelazurro       is   well    below    the

statutory maximum and therefore not in violation of the law.

Moreover, although Zelazurro challenges the application of the

Sentencing Guidelines as incorrect, where a sentence is imposed

pursuant to a Rule 11(c)(1)(C) plea agreement, the sentence is

contractual      and   not   based       upon       the    Guidelines.          See   United

States    v.     Cieslowski,       410    F.3d       353,     364    (7th    Cir.     2005).

Accordingly,       application       of        §    3742     requires       dismissal     of

Zelazurro’s appeal of his sentence for lack of jurisdiction.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm Zelazurro’s conviction and dismiss

the part of the appeal relating to his sentence.                                 This court

requires that counsel inform Zelazurro, in writing, of the right

                                               3
to petition the Supreme Court of the United States for further

review.     If Zelazurro 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 Zelazurro.        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 IN PART;
                                                           DISMISSED IN PART




                                        4
