                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4863



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TEMESTOCLES A. SANTOS, JR.,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-02-530-MJG)


Submitted:   June 24, 2005                  Decided:   July 19, 2005


Before TRAXLER, KING, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Jeffrey E. Risberg, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Angela R. White,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Temestocles A. Santos, Jr., pleaded guilty to one count

of possession with intent to distribute fifty grams or more of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2000), and

was sentenced to seventy months in prison.   His attorney has filed

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

raising one issue but stating that, in his opinion, there are no

meritorious issues for appeal.    Santos was advised of his right to

file a pro se informal brief, but did not file such a brief.     The

United States argues that this court must enforce the waiver-of-

appellate rights provision in Santos’ plea agreement. We agree and

dismiss the appeal.

                                   I

          Santos signed a written plea agreement containing the

following provision:

     [You] knowingly and expressly waive all rights conferred
     by 18 U.S.C. § 3742 to appeal whatever sentence is
     imposed, including any issues that relate to the
     establishment of the guideline range, reserving only the
     right to appeal from an upward or downward departure from
     the guideline range that is established at sentencing.

The plea agreement set forth the minimum and maximum sentence that

Santos faced and made clear that the sentencing guidelines applied

and that the court would apply a sentence within those guidelines

unless there was a basis for departure. Santos admitted that he was

guilty of the offense charged and that the Government could prove

his guilt if the case proceeded to trial.

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            Santos   and   his   attorney   signed   the   agreement.   By

signing, Santos acknowledged that he had read the agreement, had

reviewed it with his lawyer, understood it, and voluntarily agreed

to it.

            At his Fed. R. Crim. P. 11 hearing, the district court

ascertained that Santos was thirty-three years old and a high

school graduate.     Santos was not under the influence of drugs or

alcohol.    The court identified the rights that Santos waived by

going to trial, and specifically mentioned the right to appeal.

The court stated, “You’d have the right to an appeal.          You’d still

have counsel.    And on appeal, the appeals court could say well,

there was an error in the trial and send it back for a new trial or

find you not guilty.       Do you understand you’re giving up all those

rights?”   Santos stated that he did.       The district court concluded

that the plea was knowingly and voluntarily entered and accepted

Santos’ guilty plea.

           At sentencing, the district court accepted the guideline

calculations recommended in the presentence report and stipulated

to in the plea agreement, for an offense level of 27 and a criminal

history category of 1, with a resulting guideline range of 70-87

months.    The court sentenced Santos to seventy months in prison.




                                   - 3 -
                                       II

           In the Anders brief, counsel contends that the Government

should   have   made    a   motion   for    downward   departure   based   upon

substantial assistance.        However, counsel concedes that the plea

agreement stipulated that whether to make such a motion lay within

the exclusive discretion of the Government.               Further, there is

nothing to suggest that the failure to make a motion resulted from

bad faith or unconstitutional motive.           The Government replies that

Santos waived his right to appeal.

           This case is governed by our recent decision in United

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

was whether a waiver-of-appellate rights provision in a plea

agreement was enforceable after the Supreme Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005).           We employed a two-

part analysis to decide the issue.            First, we considered whether

the waiver was knowing and voluntary.           Having decided that it was,

we asked whether the issues raised on appeal were within the scope

of that motion.    They were, and we held that the appeal was subject

to dismissal.     Blick 408 F. 3d at 164.

           This Court reviews de novo the validity of a waiver of

the right to appeal.         United States v. Marin, 961 F.2d 493, 496

(4th Cir. 1992).       Whether such a waiver is knowing and intelligent

depends upon the facts and circumstances surrounding its making,

including the defendant’s background, experience, and conduct.


                                     - 4 -
United States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992).        A

waiver is ineffective if the district court fails to question the

defendant about it, United States v. Wessells, 936 F.2d 165, 167-68

(4th Cir. 1991), unless other evidence in the record shows that the

waiver was informed and voluntary.      Davis, 954 F.2d at 186.

          Here, Santos’ waiver was clearly knowing and voluntary.

The details of the waiver were clearly set forth in the written

plea agreement, which Santos had read, discussed with his attorney,

and understood.   He was thirty-three, a high school graduate, and

not under the influence of drugs or alcohol when he entered his

guilty plea. The district judge questioned him about the waiver of

his appellate rights, and Santos stated that he understood the

waiver.

          In his plea agreement, Santos reserved the right to

appeal an upward or downward departure from his guideline range.

On appeal, he attempts to challenge the Government’s failure to

move for a downward departure based upon substantial assistance.

Because there was no departure, the issue he seeks to raise lies

within the scope of the appellate waiver and, under Blick, the

matter is not reviewable on appeal.

          As required by Anders, we have reviewed the entire record

on appeal and have found no meritorious issues for appeal.        We

therefore dismiss the appeal.     The court requires that counsel

inform his client, in writing, of his right to petition the Supreme


                                - 5 -
Court of the United States for further review.      If the client

requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation.   Counsel’s motion must

state that a copy thereof was served on the client.    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




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