                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-4705


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

CLYON HINNANT,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:11-cr-00354-H-1)


Submitted:   March 20, 2013                 Decided:   April 19, 2013


Before KING, DIAZ, and THACKER, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:

             Clyon      Hinnant      appeals      his     conviction       and       48-month

sentence, following a guilty plea, to one count of receiving a

bribe   as    a      public      official,        in     violation       of     18     U.S.C.

§ 201(b)(2) (2006), and one count of conspiracy to commit wire

fraud, in violation of 18 U.S.C. § 1349 (2006).                               (E.R. 84-90,

181-86).     Hinnant’s counsel filed a brief pursuant to Anders v.

California,       386    U.S.    738      (1967),      stating    that    there       are    no

meritorious       issues      for      appeal     but    questioning          whether       the

district     court      abused      its   discretion      by     failing      to     make    an

individualized assessment of Hinnant’s situation when it refused

to grant a downward variance.                Hinnant was notified of his right

to file a supplemental pro se brief but has not done so.                                    The

Government has moved to dismiss the appeal, asserting that the

appeal is precluded by Hinnant’s waiver of appellate rights in

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

             A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006).                        United States v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                        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).           This     court     reviews      de   novo       whether      a



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defendant has effectively waived the right to appeal.                         United

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

            To      determine     whether       a     waiver    was    knowing   and

intelligent,      we    examine    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 court fully questions a defendant regarding the

appellate waiver during the Fed. R. Crim. P. 11 colloquy, the

waiver is both valid and enforceable.                 United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005).                  However, we will not enforce

an otherwise valid waiver if enforcing the waiver would result

in a miscarriage of justice.          Id.

            Our review of the record shows that Hinnant knowingly

and voluntarily waived the right to appeal his sentence.                          We

further conclude that the issue Hinnant now asserts on appeal is

within the scope of the waiver.                 Hinnant waived the right to

appeal his sentence unless the district court imposed a sentence

in excess of the applicable Guidelines range.                        Because Hinnant

challenges the reasonableness of his sentence, and the district

court imposed a within-Guidelines sentence, the issue Hinnant

seeks to raise on appeal falls squarely within the scope of the

appellate waiver.        We therefore grant the Government’s motion to

dismiss Hinnant’s appeal of his sentence.

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           The waiver provision, however, does not preclude our

review of Hinnant’s conviction 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 supported by a factual basis.                    Fed. R. Crim. P.

11(b)(2), (3).           Because Hinnant did not seek to withdraw his

guilty plea or otherwise object during his Rule 11 hearing, this

court   reviews        his    plea   colloquy    for   plain    error.      United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).

           We find that the district court substantially complied

with Rule 11 in accepting Hinnant’s plea.               Although the district

court failed to inform Hinnant that he could be prosecuted for

perjury if he lied during the hearing, see Fed. R. Crim. P.

11(b)(1)(A), and did not explicitly state that Hinnant had the

right to plead not guilty, see Fed. R. Crim. P. 11(b)(1)(B), we

find    that     these       minor   omissions   did   not     affect    Hinnant’s

substantial rights.             Accordingly, we find that Hinnant’s plea

was knowing and voluntary, and, consequently, final and binding.

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See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992)

(en banc).

            In accordance with Anders, we have reviewed the record

and have found no meritorious issues for appeal.                 We therefore

affirm Hinnant’s conviction, and dismiss the appeal as to his

sentence.    This court requires that counsel inform Hinnant, in

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

United States for further review.               If Hinnant requests that a

petition be filed but counsel believes such a 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 Hinnant.              We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                          DISMISSED IN PART;
                                                            AFFIRMED IN PART




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