                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4966



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DARRYL JEROME POTTS,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-36)


Submitted:   January 25, 2006             Decided:   February 24, 2006


Before WILLIAMS, KING, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Charles L. White, II, Greensboro, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Randall S. Galyon,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

                 Darryl Jerome Potts pled guilty to possession of 9.6

grams       of   cocaine   base     (crack)   with    intent   to   distribute,   21

U.S.C.A. § 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2005), and was

sentenced         as   a   career    offender    to    a   term     of   190   months

imprisonment.          U.S. Sentencing Guidelines Manual § 4B1.1 (2003).

Potts seeks to appeal his sentence, arguing that it was imposed in

violation of the Sixth Amendment under United States v. Booker, 543

U.S. 220 (2005), because the district court relied on facts he did

not admit to increase his offense level and to establish his career

offender status. He contends that the waiver provision in his plea

agreement does not bar his appeal.               We find that the waiver was

valid and that the issues Potts raises in this appeal are within

the scope of the waiver.             We therefore dismiss the appeal.1

                 In his plea agreement, Potts waived his right to appeal

his sentence “on any ground,” except in four circumstances:

     (1) ineffective assistance of counsel, (2) prosecutorial
     misconduct not known to the defendant at the time of the
     defendant’s guilty plea, (3) a sentence in excess of the
     statutory maximum, and (4) a sentence based on an
     unconstitutional factor, such as race, religion, national
     origin or gender.

Potts does not dispute that, during the change of plea hearing, the

district court discussed the appeal waiver with him and also


        1
      Although the government did not assert the waiver in its
opening brief, it did so after the parties were directed to submit
supplemental briefs following our decision in United States v.
Blick, 408 F.3d 162 (4th Cir. 2005).

                                         - 2 -
informed him that the statutory penalty for his offense was five to

forty years imprisonment.             A defendant may, in a valid plea

agreement, waive the right to appeal.          United States v. Wiggins,

905   F.2d   51,   53   (4th   Cir.   1990).   Whether   a   defendant   has

effectively waived the right to appeal is an issue of law this

court reviews de novo.         United States v. Marin, 961 F.2d 493, 496

(4th Cir. 1992).        An appeal waiver is valid if the defendant

knowingly and intelligently agreed to waive his right to appeal.

Blick, 408 F.3d at 168-69.

             As discussed above, the district court questioned Potts

about the appeal waiver.          He stated that he understood it.       We

conclude that there is no basis for finding that the appeal waiver

was not knowingly and intelligently made.2 The subsequent issuance

of Blakely v. Washington, 542 U.S. 296 (2004), and its progeny does

not invalidate an otherwise valid waiver.         Blick, 408 F.3d at 173.

             In his supplemental brief, Potts argues that the waiver

does not bar his appeal because the sentence he received was in

excess of the statutory maximum as defined in Booker and was based

on an unconstitutional factor; that is, the mandatory application

of the sentencing guidelines.         He asserts that his plea agreement,

unlike the agreement in Blick, did not define the term “statutory

maximum,” and that, as a result, “the meaning ascribed to the term


      2
      We have reviewed only the portions of the guilty plea hearing
transcript that the government quoted in its brief. However, Potts
does not dispute the validity of his guilty plea or the waiver.

                                      - 3 -
‘statutory maximum’ by the Supreme Court in Booker is the logical

one to apply in this case.”    He further contends that the waiver

excepted a sentence based on an unconstitutional factor, and thus

he may raise the alleged Sixth Amendment violation.

          Because   Potts’   career    offender    offense   level   was

determined by his prior convictions, and the qualifying nature of

the predicate convictions was clear from his criminal record, no

Sixth Amendment error occurred in Potts’ sentencing.         See United

States v. Thompson, 421 F.3d 278, 282-83 (4th Cir. 2005) (holding

that district court may impose armed career criminal sentence

relying on prior convictions neither charged nor admitted if facts

necessary to support enhanced sentence are inherent in fact of

convictions and no additional fact finding is required), petition

for cert. filed, Oct. 25, 2005 (No. 05-7266).            Therefore, we

conclude that the waiver exception for a sentence based on an

unconstitutional factor does not apply.       Moreover, the parties

clearly understood the term “statutory maximum” to refer to the

forty-year maximum set out in § 841(b)(1)(B).       See Blick, 408 F.3d

at 169 n.7 (agreeing with other circuits that S. Ct.’s use of term

“statutory maximum” in Blakely and Booker does not alter meaning of

language in appeal waiver).    Consequently, the issues raised in

Potts’ appeal are within the scope of his waiver.

          We therefore dismiss the appeal.        We dispense with oral

argument because the facts and legal contentions are adequately


                               - 4 -
presented in the materials before the court and argument would not

aid the decisional process.



                                                        DISMISSED




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