                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4335


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ISHMAEL AVIVE SANTIAGO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:11-cr-00287-BO-2)


Submitted:   November 7, 2012             Decided:   November 29, 2012


Before MOTZ, KING, and KEENAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Leza L. Driscoll, Raleigh, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

              Ishmael Avive Santiago pled guilty, pursuant to a plea

agreement, to conspiracy to interfere with interstate commerce

by robbery, in violation of 18 U.S.C. § 1951 (2006), and using

and carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. §§ 924(c) and 2 (2006).                                  The

district      court     sentenced         Santiago          to     fifty-one          months’

imprisonment      on    the    first       charge       and       eighty-four         months’

imprisonment     on    the    second,     to   be    served        consecutively.             On

appeal, Santiago’s counsel filed a brief pursuant to Anders v.

California,     386    U.S.    738      (1967),     stating        that    she       found    no

meritorious      issues      for     appeal    but      questioning            whether       the

district      court    erred       in    applying       a        four-level          abduction

enhancement.       The Government has moved to dismiss Santiago’s

appeal,    asserting      that     he    waived      the      right       to    appeal       his

sentence in his plea agreement.                We dismiss in part and affirm

in part.

              We review de novo whether a defendant has effectively

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

493, 496 (4th Cir. 1992).                 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

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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 district 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,

this court will refuse to enforce an otherwise valid waiver if

enforcing the waiver 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 Santiago

knowingly     and    voluntarily      agreed       to    the    waiver     of    appellate

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

colloquy, the court reviewed the terms of the plea agreement

with    Santiago,     including       the    waiver       provision,       and   Santiago

affirmed that he understood those terms.                       Additionally, Santiago

does not contest the waiver’s validity in his Anders brief or

his response to the Government’s motion to dismiss.

              We next determine whether the issue Santiago seeks to

raise    on   appeal    falls       within       the    appellate    waiver’s         scope.

Santiago’s appellate waiver reserved the right to appeal only

from a sentence in excess of the Guidelines range established at

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sentencing.         Because      the    district     court    imposed   a    sentence

within the advisory Guidelines range, and Santiago challenges

the district court’s calculation of the Guidelines range, the

issue Santiago seeks to raise on appeal falls squarely within

the scope of the appellate waiver.                   Accordingly, we grant the

Government’s       motion        to    dismiss     Santiago’s     appeal      of        his

sentence.

             The waiver provision, however, does not preclude this

court’s    review    of   Santiago’s        convictions      pursuant   to     Anders.

Prior   to    accepting      a    guilty    plea,    the     district   court       must

conduct a plea colloquy in which it informs the defendant of,

and determines that the defendant understands: the nature of the

charges to which he is pleading guilty, 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).

Additionally,       the      district       court     must     ensure       that        the

defendant’s plea was voluntary and did not result from force,

threats, or promises not contained in the plea agreement.                           Fed.

R. Crim. P. 11(b)(2).            Because Santiago 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, 524-27 (4th Cir. 2002).



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           We find that the district court substantially complied

with Rule 11’s requirements, and committed no error warranting

correction on plain error review.          In accordance with Anders, we

have reviewed the record and have found no meritorious issues

for appeal.     We therefore affirm Santiago’s convictions.

           This court requires that counsel inform Santiago, in

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

United States for further review.              If Santiago requests that a

petition be filed, but counsel believes that such 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 Santiago.                 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 IN PART;
                                                            DISMISSED IN PART




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