                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4769


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DERRICK LAMONT EVANS, a/k/a Shank, a/k/a Dechee Dan, a/k/a
Big Head, a/k/a Debo,

                Defendant - Appellant.



                            No. 09-5154


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARCUS ANDREW WATKINS, a/k/a Andrew Sparkz,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, District
Judge. (1:08-cr-00024-jpj-pms-1; 1:08-cr-00024-jpj-pms-3)


Submitted:   December 20, 2011            Decided:   January 24, 2012


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Sandra B. Jelovsek, Johnson City, Tennessee; Keith N. Hurley,
KEITH N. HURLEY, P.C., Richmond, Virginia, for Appellants.
Timothy   J.  Heaphy,  United   States  Attorney,   Jennifer  R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Derrick Lamont Evans and Marcus Andrew Watkins pleaded

guilty to conspiracy to possess with intent to distribute and to

distribute cocaine and cocaine base (“crack”), in violation of

21 U.S.C. § 846 (2006).                  The district court sentenced Evans to

life    imprisonment         and       sentenced          Watkins       to    240        months    of

imprisonment, and they now appeal.                           The Government has asserted

the waiver of appellate rights contained in each Appellant’s

plea    agreement      with       respect          to   their    convictions.              For    the

reasons that follow, we dismiss Evans’ and Watkins’ appeals of

their    convictions,             vacate       the       sentences,          and    remand        for

resentencing.

              On appeal, Evans argues that his guilty plea was not

knowing and voluntary and Watkins argues that the district court

erred    in    denying       his       motion       to       withdraw      his     guilty        plea.

Pursuant      to   a    plea          agreement,         a     defendant      may        waive     his

appellate      rights       under        18    U.S.C.          § 3742      (2006).           United

States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                                       A waiver

will preclude appeal of a specific issue if the waiver is valid

and    the    issue    is    within          the    scope       of   the     waiver.         United

States v.      Blick,       408       F.3d    162,       168    (4th    Cir.       2005).          The

question      of   whether        a    defendant         validly     waived        his    right     to

appeal is a question of law that this court reviews de novo.

Id. at 168.

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            “The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the

right to appeal.”          Id. at 169 (citation omitted).                     To determine

whether a waiver is knowing and intelligent, we examine “the

totality    of     the    circumstances,          including      the    experience       and

conduct of the accused, as well as the accused’s educational

background       and     familiarity        with     the       terms     of     the    plea

agreement.”        United States v. General, 278 F.3d 389, 400 (4th

Cir.   2002)     (internal      quotation         marks    and    citation       omitted).

Generally, if the district court fully questions a defendant

regarding the waiver of his right to appeal during the Rule 11

colloquy,    the    waiver      is   both    valid       and    enforceable.          United

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

States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).                                 We

have thoroughly reviewed the record and conclude that Evans and

Watkins pleaded guilty knowingly and voluntarily and that their

appellate    waivers      are    valid      and    enforceable.           Moreover,      the

issue Watkins seeks to raise falls squarely within the scope of

the appellate waiver.

            Evans also raises two sentencing arguments on appeal

and the Government has not sought enforcement of the waiver with

respect    to    Evans’     sentencing       arguments,          or    with    respect   to

Watkins’ sentence.           Therefore we will review the Appellants’

sentences.        Evans    first     argues       that    two     of   the     convictions

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listed in the 21 U.S.C. § 851 (2006) notice, and used to enhance

the mandatory minimum for his offense to life imprisonment, were

not felonies punishable by a term of imprisonment exceeding one

year. 1     We review a sentence for reasonableness, applying an

abuse of discretion standard.                Gall v. United States, 552 U.S.

38, 51 (2007); see also United States v. Layton, 564 F.3d 330,

335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009).                                  In so

doing, we first examine the sentence for “significant procedural

error,”      including       “failing        to     calculate        (or     improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory,       failing    to   consider         the    [18     U.S.C.]     §     3553(a)

[(2006)]       factors,     selecting      a       sentence      based     on      clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”      Gall, 552 U.S. at 51.

               Under 21 U.S.C. § 841(b)(1)(A) (2006), current version

at    21   U.S.C.A.      § 841(b)(1)(A)        (West     2006    &   Supp.       2011),    a

defendant is subject to a statutory mandatory minimum term of

ten    years    of     imprisonment    unless       he   has     sustained        a     prior

conviction       for    a   felony    drug        offense,      in   which       case     the

statutory        mandatory       minimum          becomes       twenty       years        of

imprisonment.          The mandatory minimums sentence is raised to life

       1
       Evans has not challenged on appeal whether the other
conviction listed in the § 851 notice, for delivering cocaine,
qualified as a felony drug offense.



                                           5
imprisonment if the defendant has sustained two or more such

prior convictions.                A felony drug offense is defined in part as

an “offense punishable by imprisonment for more than one year

under any law . . . of a State.”                        21 U.S.C. § 802(44) (2006).

               Here,        two     of     Evans’        prior        convictions         were    for

possession and possession with intent to distribute marijuana

and possession of cocaine, Class I felonies under North Carolina

law, and Watkins’ conviction was for possession with intent to

sell cocaine, a Class H felony.                          At the time of each of these

state convictions, Evans’ prior record level was not above IV

and Watkins’ prior record level was II; the sentencing court in

each    case    found        that      Evans      and    Watkins          should    be    sentenced

within the presumptive range of the applicable sentencing table

under   N.C.     Gen.       Stat.        § 15A-1340.17(c)             (2007).        Under       North

Carolina   law,        both       Evans     and    Watkins       faced       maximum      terms     of

imprisonment           of     ten         months.               See        N.C.     Gen.         Stat.

§ 15A-1340.17(d) (2007).                   Therefore, neither Evans nor Watkins

could   have     received          a     term     of    imprisonment            exceeding    twelve

months for their prior convictions.

               In United States v. Simmons, 648 F.3d 237 (4th Cir.

2011)   (en     banc),       we     determined          that     a    prior      offense     is    not

punishable by a term exceeding one year of imprisonment if the

defendant could not have actually received more than one year of

imprisonment      for        that        offense,       based        on   his     prior    criminal

                                                   6
history and other factors.               As Evans could not have received a

term exceeding one year of imprisonment for either of the two

challenged        prior     state    offenses,     he   only   had   one    qualifying

predicate         offense     under    § 841(b)(1)(A),         not   two    or    more.

Because the advisory Guidelines range was determined based on

the statutory mandatory minimum of life imprisonment rather than

twenty      years    of     imprisonment,    see    U.S.   Sentencing       Guidelines

Manual § 5G1.1 (2010), Evans was sentenced based on an incorrect

Guidelines calculation and an inapplicable statutory mandatory

minimum.

              In addition, as Watkins could not have received a term

exceeding one year of imprisonment for his prior state offense,

he did not have a qualifying felony under § 841(b)(1)(A).                           The

statutory mandatory minimum, however, was based on the enhanced

penalties that would have applied if Watkins had sustained a

qualifying         felony.          Therefore,     both    Evans’     and    Watkins’

sentences are procedurally unreasonable. 2

              Evans also argues that the district court violated his

Sixth Amendment rights by finding that he was accountable for

more       than     fifty    grams     of   crack,      thereby      increasing    the

       2
       In so finding, we do not fault the experienced district
judge,   who  relied  upon   then-binding  unambiguous Circuit
authority, which we subsequently disavowed in Simmons, in
calculating the mandatory minimum sentences to which Evans and
Watkins were subject.



                                            7
applicable     statutory       minimum    under      § 841(b).      However,    Evans

admitted the threshold drug amount when he pleaded guilty to the

indictment, charging him with conspiracy to possess with intent

to distribute and distribute more than 500 grams of cocaine and

more than fifty grams of crack.                 See 21 U.S.C. § 841(b)(1)(A).

Therefore, as Evans admitted the minimum quantity of drugs for

which he was responsible, the court did not err in sentencing

Evans in accordance with his guilty plea.

            Accordingly, we dismiss Evans’ and Watkins’ appeals of

their    convictions,      but    vacate       the   sentences     and    remand   for

resentencing.       In     light     of     our      disposition    regarding      the

Appellants’ sentencing, we also grant the Government’s motion to

supplement the record and deny the motion to file a supplemental

brief as moot.     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.

                                                                 DISMISSED IN PART,
                                                                   VACATED IN PART,
                                                                       AND REMANDED




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