                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5268


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

TONY ARISMENDY PEGUERO,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:07-cr-00017-RLV-DCK-1)


Submitted:    July 20, 2009                 Decided:   August 3, 2009


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Denzil H.    Forrester, Charlotte, North Carolina, for Appellant.
Edward R.    Ryan, Acting United States Attorney, Charlotte, North
Carolina,     Amy E. Ray, Assistant United States Attorney,
Asheville,   North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tony Arismendy Peguero pled guilty pursuant to a plea

agreement    to      possession      with   the   intent       to    distribute      five

kilograms    of      cocaine   and    aiding      and    abetting      the     same,    in

violation       of   21    U.S.C.     § 841(a)(1),        (b)(1)(A)        (2006)      and

18 U.S.C. § 2 (2006).             After finding Peguero eligible for the

safety valve, 18 U.S.C. § 3553(f) (2006), the district court

sentenced him to 108 months’ imprisonment.                      On appeal, Peguero

claims that his guilty plea was unknowing and involuntary.                             The

Government      urges     dismissal    of   the   appeal       on    the   ground    that

Peguero validly waived his right to appeal his conviction in his

plea agreement.         We affirm.

            A    defendant     may    waive     the    right    to    appeal    if   that

waiver is knowing and intelligent.                See United States v. Blick,

408 F.3d 162, 169 (4th Cir. 2005).                    Generally, if the district

court fully questions a defendant regarding the waiver of his

right to appeal during the Fed. R. Crim. P. 11 colloquy, the

waiver is both valid and enforceable.                     See United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).                    Whether a defendant

validly waived his right to appeal is a question of law that we

review de novo.         See Blick, 408 F.3d at 168.                 Our review of the

record reveals that Peguero knowingly and voluntarily waived his

right to appeal his conviction and sentence.



                                            2
             We    conclude,       however,       that    Peguero’s       assertion            that

his   guilty      plea    was    involuntary        and    that    the    district         court

erred   in   accepting       his    plea     constitutes        an      exception         to   the

appellate         waiver         because      it         presents        a      “colorable”

constitutional        claim.         See,     e.g.,       United      States       v.     Attar,

38 F.3d 727, 733 n.2 (4th Cir. 1994).                       Accordingly, we decline

the     Government’s             suggestion         to      dismiss          the        appeal.

Nevertheless, although we possess jurisdiction to consider this

claim, we find it to be without merit.                     The record confirms that

the    magistrate        judge    conducted       a   thorough        Rule     11    hearing,

ensuring       that      Peguero’s         guilty        plea     was     knowingly            and

voluntarily made.          Peguero’s belated claim that he was confused

at the hearing and did not understand the consequences of his

plea is simply belied by the record.

             Accordingly, we affirm the district court’s judgment.

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




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