                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4666


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERNEST AUGUSTUS HAWKINS, a/k/a Gus Hawkins,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:10-cr-00322-D-1)


Submitted:   December 1, 2011             Decided:   December 15, 2011


Before MOTZ, SHEDD, and KEENAN, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam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


Daniel K. Dorsey, Washington, D.C., for Appellant. Jennifer P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Ernest Augustus Hawkins pled guilty pursuant to a plea

agreement to conspiracy to interfere with commerce by robbery,

in violation of 18 U.S.C. § 1951 (2006), and was sentenced to

240 months in prison.               Counsel has filed an appeal pursuant to

Anders v. California, 386 U.S. 738 (1967), in which he states

that   he    believes       there     are     “no    legal    issues      that      were   not

properly raised or disposed of by the district court, and there

are no grounds for an appeal in this case[.]”                           Although counsel

also states that Hawkins believes the district court violated

Fed. R. Crim. P. 11 when it accepted his guilty plea and erred

when it sentenced him to 240 months in prison, counsel concedes

that   the       district     court     did    not    violate      Rule      11     and    that

Hawkins’ sentence is reasonable.                    Hawkins has not filed a pro se

supplemental brief despite receiving notice of his right to do

so.    The Government moves to dismiss the appeal as to Hawkins’

sentence         based   on    the      appellate         waiver   in     Hawkins’         plea

agreement.        We affirm in part, and dismiss in part.

              A    defendant      may    waive      the    right   to   appeal       if    that

waiver      is    knowing     and     intelligent.           See    United        States     v.

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).                          Our independent

review      of    the    record      supports       the    conclusion        that    Hawkins

voluntarily        and    knowingly         waived    his     right     to    appeal       his



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sentence.      Thus,   we    conclude      that    the      waiver    is   valid     and

enforceable.

            However,    even    a    valid      waiver      does     not   waive     all

appellate claims.       Specifically, a valid appeal waiver does not

preclude a challenge to a sentence on the ground that it exceeds

the   statutory      maximum    or    is       based   on     a    constitutionally

impermissible factor such as race, arises from the denial of a

motion to withdraw a guilty plea based on ineffective assistance

of counsel, or relates to claims concerning a violation of the

Sixth Amendment right to counsel in proceedings following the

guilty plea.       See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th

Cir. 1993).        Moreover, the appellate waiver in Hawkins’ plea

agreement did not waive:         (1) any challenges he may have if his

sentence    were     above     the    Guidelines         range       calculated      at

sentencing;    (2)   certain    ineffective        assistance        of    counsel    or

prosecutorial misconduct claims; or (3) any claims Hawkins may

have pertaining to his conviction.                Hawkins’ sentence is within

the Guidelines range calculated at sentencing and he raises no

claims that fall outside the scope of his appellate waiver.

            Thus, we grant the Government's motion to dismiss the

appeal as to Hawkins’ sentence.                Although we are charged under

Anders with reviewing the record for unwaived error, we have

reviewed the record in this case and have found no unwaived

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meritorious issues for appeal.                We therefore dismiss the appeal

in part and affirm in part.               This court requires that counsel

inform Hawkins, in writing, of his right to petition the Supreme

Court   of    the    United   States     for    further    review.      If    Hawkins

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move this

court   for    leave    to    withdraw    from    representation.        Counsel’s

motion must state that a copy thereof was served on Hawkins.                      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 in the decisional process.



                                                                DISMISSED IN PART,
                                                                  AFFIRMED IN PART




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