                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4256


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DONALD R. KISER, D.O.,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00074-1)


Submitted:    March 25, 2009                 Decided:   April 16, 2009


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Monica K. Schwartz, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Donald        R.    Kiser       pled       guilty,      pursuant         to     a    plea

agreement, to conspiracy to distribute oxycodone, hydrocodone,

and alprazolam, in violation of 21 U.S.C. § 846 (2006).                                            Kiser

raises    two    issues          on   appeal.           First,     Kiser     argues         that    the

district        court       erred        by     applying         a     two-level             sentence

enhancement,          pursuant         to     U.S.       Sentencing        Guidelines             Manual

§ 3B1.4 (2007), for the use of a minor in the commission of an

offense.      Second, Kiser contends that the district court did not

adequately consider the 18 U.S.C. § 3553(a) (2006) sentencing

factors when imposing Kiser’s sentence.                              As both issues raised

by Kiser on appeal are barred by waiver, we affirm.

              “Regardless of whether the sentence imposed is inside

or    outside    the     [g]uidelines           range,       the     appellate         court       must

review     the       sentence         under    an       abuse-of-discretion                standard.”

Gall v. United States, 128 S. Ct. 586, 597 (2007).                                          Appellate

courts are charged with reviewing sentences for reasonableness

under    an     abuse       of    discretion            standard.          Id.    at       594,     597.

Reasonableness review requires appellate consideration of both

the   procedural        and       substantive           reasonableness           of    a    sentence.

Id. at 597.

              However, a defendant may waive appellate review of an

alleged    error       in    sentencing         if      he   raises    and       then       knowingly

withdraws       an    objection         to    the       error.       See    United         States     v.

                                                    2
Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008) (finding that

defendant’s    withdrawal      of       objection      to    sentence      enhancement

precluded    appellate   review          of    enhancement);     United     States   v.

Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (“[A] party who

identifies    an    issue,    and    then         explicitly   withdraws      it,    has

waived the issue.”).         An appellant is precluded from challenging

a waived issue on appeal.           See Rodriguez, 311 F.3d at 437.

            Here,    Kiser    explicitly            objected    to   the     probation

officer’s    application      of    a     two-level       enhancement      under    USSG

§ 3B1.4 for use of a minor in the commission of an offense.

However,    Kiser   withdrew       this       objection     during   his    sentencing

hearing in order to receive the benefit of a downward adjustment

for acceptance of responsibility.                   Thus, Kiser’s withdrawal of

his prior objection amounts to a waiver of this issue, and he is

precluded from challenging it on appeal.

            Similarly, the Government contends that Kiser waived

his right to appeal the reasonableness of his sentence in his

plea   agreement.      Whether       a    defendant       effectively      waived    his

right to appeal pursuant to a plea bargain is an issue of law

that is reviewed de novo.           United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005).          A waiver will be enforced if the record

shows the waiver is valid and the challenged issue falls within

the scope of the waiver.            Id.       An appeal waiver is valid if it

is “the result of a knowing and intelligent decision to forego

                                              3
the right to appeal.”               United States v. Broughton-Jones, 71 F.3d

1143,     1146    (4th       Cir.     1995)    (internal      quotation    marks       and

citations    omitted).           To    decide      whether   a     defendant’s    waiver

results    from        a   knowing    and     intelligent    decision,     we    examine

“‘the particular facts and circumstances surrounding that case,

including        the       background,      experience       and    conduct      of    the

accused.’”       United States v. Davis, 954 F.2d 182, 186 (4th Cir.

1992) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

Generally, if the district court fully questions a defendant at

his Fed. R. Crim. P. 11 proceeding regarding the waiver of his

right to appeal, the waiver is both valid and enforceable.                             See

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

            Here, Kiser argues that the district court erred in

failing     to    adequately          consider     the   § 3553(a)      factors       when

determining Kiser’s sentence – a challenge to the procedural

reasonableness of the sentence.                    See Gall, 128 S. Ct. at 597.

However, in his plea agreement, Kiser waived his right to appeal

the reasonableness of any sentence imposed by the district court

that fell within the guideline range, reserving the right to

challenge the district court’s guidelines calculations.                          As this

is not a challenge to the district court’s calculation of the

guideline range, and Kiser’s sentence fell within the guideline

range, Kiser has waived his right to appeal this issue if we

find his waiver valid.

                                               4
            There is no question that Kiser is an intelligent and

learned individual, capable of understanding his plea agreement

and the waiver contained therein.              Moreover, prior to accepting

Kiser’s guilty plea, the district court conducted a thorough

Fed.   R.   Crim.   P.   11     colloquy.      The   court       questioned     Kiser

regarding his knowledge of the contents of the plea agreement

and the rights he was waiving by pleading guilty, specifically

his right to appeal the reasonableness of his sentence.                           The

district court further verified that Kiser’s plea was entered

freely   and    voluntarily;      that   he    was   not    suffering     from    any

emotional or mental illness; and that he was not currently under

the influence of any medicine, drugs, or alcohol.                    Accordingly,

as it is abundantly clear that Kiser’s appeal waiver was “the

result of a knowing and intelligent decision to forego the right

to   appeal,”   Broughton-Jones,         71   F.3d   at    1146,    we   find    that

Kiser’s appeal waiver is valid and enforceable, and he is barred

from appealing the reasonableness of his sentence.

            As Kiser has waived his right to appeal both of the

issues before us, we affirm the judgment of the district court.

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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