                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4453


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JESSE DORSZ, a/k/a 3D,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:07-cr-00399-JFM-2)


Submitted:   October 29, 2010             Decided:   November 18, 2010


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A.,
Baltimore, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, John Walter Sippel, Jr., Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Jesse       Dorsz     appeals         his    conviction         and    210-month

sentence for one count of conspiracy to possess with intent to

distribute        500   grams     or    more    of    cocaine      in    violation          of    21

U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C) (2006), and one count

of possession of a firearm in furtherance of a drug trafficking

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

Government        has   moved     to    dismiss,          citing   an   appellate          waiver

contained     in    Dorsz’s       plea       agreement.        For      the       reasons    that

follow,      we    deny    the      motion     to     dismiss,     and       we     affirm       the

district court’s judgment.

              Dorsz seeks to raise one issue on appeal: that his

guilty plea was not voluntary.                   Specifically, he claims that the

Government represented to his counsel that a cooperating witness

would testify that Dorsz murdered David Lee to prevent him from

testifying before a grand jury.                       After Dorsz pled guilty, his

counsel      investigated         the       murder    allegations       further        and       has

represented that the witness would not testify against Dorsz as

the Government claimed.                 Dorsz argues that had it not been for

the Government’s claim that the witness would testify against

him, he would have pled not guilty and proceeded to trial.

              Prior       to   pleading        guilty,       Dorsz      executed       a     plea

agreement in which he agreed to waive “all rights conferred by

18 U.S.C. § 3742 [2006] to appeal whatever sentence is imposed,

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including     any       fine,    term       of    supervised     release,     or    order    of

restitution and any issues that relate to the establishment of

the advisory [G]uidelines range[.]”

             Pursuant to a plea agreement, a defendant may waive

his appellate rights under 18 U.S.C. § 3742.                             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).                             Whether a defendant

validly waived his right to appeal is a question of law that

this court reviews de novo.                      Id. at 168.          “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).

             By     its       plain      terms,        the      appellate     waiver       only

encompasses        an    appeal        of     Dorsz’s        sentence.        He    does    not

challenge his sentence on appeal.                         Rather, he argues his plea

was    invalid.          Accordingly,            the   issue    he    seeks   to    raise    is

outside the scope of the appellate waiver, so we deny the motion

to    dismiss.          We   have     reviewed         the    record,    however,     and    we

conclude     that       Dorsz’s       claim       on   appeal    is    without     merit    and

further response from the Government is not warranted.

             Because Dorsz did not move to withdraw his guilty plea

in    the   district         court,     this      court      reviews    for   plain     error.

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United States v. General, 278 F.3d 389, 393 (4th Cir. 2002);

United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).

To     demonstrate      plain        error,          a     defendant        must       show      that:

(1) there was an error; (2) the error was plain; and (3) the

error    affected       his    “substantial               rights.”          United      States       v.

Olano,    507    U.S.    725,       732    (1993).           A     defendant’s         substantial

rights    are    affected       if       the    court       determines          that    the      error

“influenced       the     defendant’s            decision           to    plead        guilty      and

impaired    his     ability         to    evaluate         with     eyes       open    the      direct

attendant risks of accepting criminal responsibility.”                                          United

States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal

quotation marks omitted); see also Martinez, 277 F.3d at 532

(holding that a defendant must demonstrate that she would not

have pled guilty but for the error).

             Here, Dorsz has not shown that his substantial rights

were     affected    by       any    purported             error.         At    sentencing,         he

indicated       (through       counsel)          that        he     was        aware      that     the

Government’s      witness          would       not       testify    against        him,      and    the

district court afforded him the opportunity to move to withdraw

his     guilty    plea        on     that       basis.              Dorsz       repeatedly         and

emphatically declined to move to withdraw his plea.                                       He cannot

now     claim    that     he       would       have        pled     not     guilty        had      this

information      come     to    light      sooner.            We    conclude       that       Dorsz’s

claim does not withstand plain error review.

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           Accordingly, we deny the motion to dismiss and 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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