                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4884


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

SEDIEKA MCCLAM,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00058-RBH-1)


Submitted:   May 7, 2013                    Decided:   June 11, 2013


Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam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


James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant.    Alfred William Walker Bethea,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sedeika        McClam     was         sentenced     to        262        months’

imprisonment       after     pleading       guilty,         pursuant      to     a     plea

agreement, to possession with intent to distribute marijuana and

cocaine,    in    violation    of     21    U.S.C.      §   841(a)(1),         (b)(1)(C),

(b)(1)(D) (2006), and possession of a firearm in furtherance of

a   drug     trafficking       crime,        in     violation        of     18       U.S.C.

§ 924(c)(1)(A)      (2006).         On     appeal,      counsel      filed       a    brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that there are no meritorious issues for appeal but questioning

whether the McClam’s guilty plea was invalid and whether his

sentence    was    unreasonable.           The    Government     moved      to       dismiss

McClam’s appeal, asserting that he waived the right to appeal

his conviction and sentence in the plea agreement.                          We dismiss

in part and affirm in part.

                                           I.

            Rule    11     requires      that     the   trial     court,        prior    to

accepting a guilty plea, conduct a plea colloquy in which it

informs the defendant of the charges to which he is pleading and

determines that he comprehends the nature of those charges, any

mandatory minimum penalty, the maximum possible penalty, and the

rights he is relinquishing by pleading guilty.                    Fed. R. Crim. P.

11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.

1991).     The district court must also ensure that the defendant’s

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plea is voluntary, and that there is a factual basis for the

plea.   Fed. R. Crim. P. 11(b)(2), (3).             In reviewing compliance

with Rule 11, this court accords deference to the trial court’s

decision as to how to best conduct the mandated colloquy with

the defendant.      DeFusco, 949 F.2d at 116.

             Because McClam did not move to withdraw his guilty

plea in the district court or raise any objections to the Rule

11 colloquy, we review the colloquy for plain error.                     United

States v. Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002).                     To

demonstrate plain error, a defendant must show:                 (1) there was

error, (2) the error was plain, and (3) the error affected his

“substantial rights.”         United States v. Olano, 507 U.S. 725,

732-34 (1992).      To establish that a Rule 11 error has occurred,

the defendant “must show a reasonable probability that, but for

the   error,   he     would   not   have   entered    the   plea.”       United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

             Upon review of the transcript of the Fed. R. Crim. P.

11 hearing, we conclude that the district court complied with

Rule 11’s requirements.        The court ensured that McClam’s guilty

plea was knowing and voluntary and supported by a factual basis,

and   that   McClam    understood    the   rights    he   was   giving   up   by

pleading guilty and the sentence he faced.




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                                             II.

               We review de novo whether a defendant has effectively

waived the right to appeal.                  United States v. Marin, 961 F.2d

493, 496 (4th Cir. 1992).                  A defendant may, in a valid plea

agreement, waive the right to appeal under 18 U.S.C. § 3742

(2006).        United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.

1990).    An appellate waiver must be “the result of a knowing and

intelligent         decision    to   forgo    the       right      to    appeal.”        United

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)

(internal quotation marks and citation omitted).

               To    determine       whether        a       waiver       is     knowing      and

intelligent,          this     court    examines             the        totality      of     the

circumstances,         including     the     defendant’s           experience,        conduct,

educational          background,       and        familiarity            with      the      plea

agreement’s terms.           United States v. General, 278 F.3d 389, 400

(4th    Cir.    2002).         Generally,     if        a   court       fully    questions    a

defendant      regarding       the   appellate          waiver      during      the   Rule    11

colloquy,      the    waiver    is   both     valid         and    enforceable.          United

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

we     will    refuse     to    enforce       an    otherwise            valid     waiver    if

enforcement would result in a miscarriage of justice.                              Id.

               Upon review of the plea agreement and the transcript

of the Fed. R. Crim. P. 11 hearing, we conclude that McClam

knowingly and intelligently agreed to the waiver of appellate

                                              4
rights as set forth in the plea agreement.                         During the Rule 11

hearing      the   court     reviewed     the    terms    of    the    plea    agreement,

including the waiver provision, with McClam, and McClam affirmed

that    he    understood      those     terms.         Moreover,      McClam    does   not

contest the validity of the waiver in his Anders brief or in his

response to the Government’s motion to dismiss the appeal.

              We   further      conclude    that       McClam’s     challenge     to   the

reasonableness of his sentence falls squarely within the scope

of the waiver provision.              McClam expressly agreed to waive the

right    to    contest       his   sentence       in    any    direct       appeal.     We

therefore      grant    the     Government’s       motion      to     dismiss    McClam’s

appeal of his sentence.

                                           III.

              Counsel for McClam has also filed a letter pursuant to

Fed.    R.    App.     P.    28(j),     citing     the    Supreme      Court’s     recent

decision in Florida v. Jardines, 133 S. Ct. 1409 (2013) (use of

drug-sniffing dog on defendant’s front porch was search within

meaning of Fourth Amendment).                   Before pleading guilty, McClam

filed a motion to suppress, and counsel now contends that had

Florida v. Jardines then been decided, McClam would not have

withdrawn his motion.              However, McClam has waived the Fourth

Amendment claim by knowingly and voluntarily pleading guilty.

United States v. Bowles, 602 F.3d 581, 582-83 (4th Cir. 2010)

(guilty        plea         constitutes         waiver        of      all      antecedent

                                            5
nonjurisdictional defects).                 Because the district court properly

conducted      the      Rule    11    colloquy,         and    because    McClam       did   not

attempt     to        preserve       the   issue        for     review    by     entering      a

conditional guilty plea, McClam has relinquished the right to

raise this issue on appeal.                 Id.        That Jardines had not yet been

decided    when        he   withdrew       the    motion       provides    no    excuse      for

McClam’s failure to preserve the issue for appellate review.

See   Brady      v.    United    States,         397    U.S.    742,     757   (1970)    (“[A]

voluntary plea of guilty intelligently made in the light of the

then applicable law does not become vulnerable because later

judicial decisions indicate that the plea rested on a faulty

premise.”).

                                             IV.

              In accordance with Anders, we have reviewed the entire

record and have found no unwaived meritorious issues for appeal.

We therefore affirm McClam’s conviction.

              This      court    requires        that     counsel      inform    McClam,      in

writing,      of      his   right     to   petition       the    Supreme       Court    of   the

United States for further review.                         If McClam requests that a

petition be filed, but counsel believes such a petition would be

frivolous, counsel may move in this court for leave to withdraw

from representation.                 Counsel’s motion must state that a copy

thereof was served on McClam.                        We dispense with oral argument

because the facts and legal contentions are adequately presented

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in the materials before this court and argument would not aid

the decisional process.


                                             AFFIRMED IN PART;
                                             DISMISSED IN PART




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