PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 99-4599

WILLIE EDWARD BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-98-174)

Argued: September 26, 2000

Decided: November 16, 2000

Before WILKINSON, Chief Judge, and MOTZ and
KING, Circuit Judges.

_________________________________________________________________

Dismissed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Wilkinson and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Christopher Ford Cowan, COWAN, NORTH &
LAFRATTA, L.L.P., Richmond, Virginia, for Appellant. Anne Mar-
garet Hayes, Assistant United States Attorney, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Willie Edward Brown seeks to appeal the sentence imposed upon
him pursuant to his guilty plea. Specifically, Brown seeks to chal-
lenge the district court's enhancement of his sentence based on his
status as a career offender. The government has moved to dismiss on
the ground that Brown waived his right to appeal his sentence in his
plea agreement. In the alternative, the government argues that Brown
was properly sentenced as a career offender. Because we conclude
that Brown has waived his right to appeal, we dismiss the appeal.

I.

After Brown stabbed a man at the Fort Bragg Military Reservation
with a Samurai-style sword, he pled guilty to a single count of assault
with a dangerous weapon with intent to do bodily harm, in violation
of 18 U.S.C. § 113(a)(3) (Supp. IV 1998). Brown and the government
memorialized their plea agreement in a four-page document. Para-
graph 2b of that agreement, which appears on the first page, contains
a provision stating that Brown agrees:

       To waive knowingly and expressly the right to appeal what-
       ever sentence is imposed on any ground, including any
       appeal pursuant to 18 U.S.C. § 3742, and further to waive
       any right to contest the conviction or the sentence in any
       post-conviction proceeding, including any proceeding under
       28 U.S.C. § 2255, excepting an appeal or motion based upon
       grounds of ineffective assistance of counsel or prosecutorial
       misconduct not known to the Defendant at the time of the
       Defendant's guilty plea.

Paragraph 3b of the agreement, which appears on page three, provides
in pertinent part that the "Defendant [Brown] understands . . . [t]hat
sentencing will be in accordance with the United States Sentencing
Guidelines, that any sentence imposed will be without parole, and that
the Court may depart from those guidelines under some circum-
stances."

                  2
During the plea colloquy, the district court advised Brown of the
consequences of pleading guilty and questioned Brown to ensure that
the plea was both knowing and voluntary. Before accepting Brown's
plea, the court also reviewed the contents of the plea agreement with
him. As part of this process, the court advised Brown that he was
waiving the right to appeal his sentence:

       The Court: Now, I have been handed a document entitled
       "Memoranda of Plea Agreement in your
       Case." It's got four pages, and it appears to
       have your signature and that of Mr. Parker and
       Mr. Bockin, the Special Assistant U. S. Attor-
       ney. And I ask you, did you have an opportu-
       nity to read and to discuss this plea agreement
       with your lawyer, Mr. Parker, before you
       signed it?

       Defendant: Yes, sir.

       The Court: And does this plea agreement represent in its
       entirety your agreements with the United
       States?

       Defendant: Yes, sir.

       The Court: Did you understand all the terms in this plea
       agreement, the language, even any legal
       phrases that were in here after you talked with
       Mr. Parker about it?

       Defendant: Yes, sir.

       The Court: Has anyone made any other or different prom-
       ise to get you to plead guilty to this charge,
       other than what's written in this plea agree-
       ment?

       Defendant: No, sir.

                  3
The Court: Has anyone threatened you or tried to force
you in any way to get you to plead guilty?

Defendant: No, sir.

The Court: Do you understand that this is a felony and
you're going to lose certain valuable civil
rights? You have to say "yes" or "no."

Defendant: Yes, sir.

The Court: And if I accept your plea today you cannot
ever later withdraw your plea. Do you under-
stand that?

Defendant: Yes, sir.

The Court: Have you answered all of my questions truth-
fully?

Defendant: Yes, sir.

The Court: Now, I point out to you paragraph 2-C. You
agree to waive your rights -- correction, 2-B
-- waive your right to appeal whatever sen-
tence is imposed, reserving only the right to
appeal based on prosecutorial misconduct or
ineffective assistance of counsel. Do you
understand that?

Defendant: Yes, sir.

The Court: In other words, you can't appeal as long as
your sentence is in accordance with the law.

Defendant: Yes, sir.

The Court: All right. Do you need any more time to think
about your plea or to talk with your lawyer,
Mr. Parker, before you enter your plea?

           4
       Defendant: No, sir.

Based on this colloquy, the court determined that Brown was compe-
tent and capable of entering a voluntary plea, and that his plea of
guilty, and the subsequent waiver of his right to appeal, was knowing
and voluntary.

In a pre-sentence report, the probation officer designated Brown a
career offender pursuant to U.S.S.G. § 4B1.1 on the basis of two prior
felony convictions for crimes of violence, namely a North Carolina
conviction for breaking and entering and a South Carolina conviction
for assault and battery of a high and aggravated nature. Brown
objected to his designation as a career offender on the ground that,
under South Carolina law, assault and battery of a high and aggra-
vated nature was neither a felony nor a violent crime. The district
court rejected this argument and accepted the probation officer's des-
ignation of Brown as a career offender. Based on his career offender
status, Brown's sentencing range was seventy-seven to ninety-six
months. The district court imposed a sentence of ninety-six months,
the maximum allowed under the Sentencing Guidelines.

Brown now appeals his designation as a career offender, and his
resulting sentence, on the same ground that he raised in the district
court, as well as on new ground, namely that the first predicate
offense, breaking and entering, was insufficient to trigger career
offender status because it was not a felony conviction and because
Brown was only sixteen at the time of his conviction. The government
moves to dismiss Brown's appeal, asserting that he waived his right
to appeal in his plea agreement.1
                                1

II.

The Constitution does not provide criminal defendants an appeal as
a matter of right. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The
United States Code, however, permits a criminal defendant to appeal
_________________________________________________________________
1 Alternatively, the government contends that we should affirm because
the district court properly sentenced Brown as a career offender. Because
we dismiss the appeal, we do not consider the underlying issue as to
whether the district court properly applied the Sentencing Guidelines.

                  5
a sentence imposed "as a result of an incorrect application of the Sen-
tencing Guidelines." 18 U.S.C. § 3742(a)(2) (1994). A defendant can,
of course, waive this statutory right to appeal. See United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether he has effectively
done so is a matter of law that we review de novo.

We have considered the effectiveness of a plea agreement appeal
waiver in two cases, United States v. Marin, 961 F.2d 493, 496 (4th
Cir. 1992), and United States v. Bowden, 975 F.2d 1080 (4th Cir.
1992). These cases establish that, with two exceptions, a defendant
may not appeal his sentence if his plea agreement contains an express
and unqualified waiver of the right to appeal, unless that waiver was
unknowing or involuntary. An express knowing waiver will not bar
appeal of a sentence when the sentence was (1) imposed in excess of
the maximum penalty provided by law or (2) based on a constitution-
ally impermissible factor such as race. See Marin, 961 F.2d at 496.
The sentences at issue in Marin and Bowden involved neither of these
exceptions, nor are these exceptions at issue here.

In Marin, we held that because the plea agreement contained an
express and unqualified waiver of the defendant's right to appeal his
sentence and the record did not indicate that the waiver was anything
less than knowing and voluntary, the waiver was valid. See Marin,
961 F.2d at 494-96 & n.1. Although Marin claimed that the district
court misapplied the Guidelines in computing his sentence, we con-
cluded that this type of claim was waived by the applicable provision
in the plea agreement.22 We reasoned:
_________________________________________________________________
2 The plea agreement in Marin stated, in pertinent part:

        Defendant, HERBERT JOHN MARIN, is aware that in some
        counts of the Criminal Information sentence will be imposed in
        conformity with the Federal Sentencing Guidelines and Policy
        Statement. . . . In addition, Defendant, knowing that he has a
        right of direct appeal of the sentence under 18 U.S.C. § 3742(a)
        and the grounds listed therein, expressly waives the right to
        appeal his sentence on those grounds or on any ground . . . .
        Defendant, HERBERT JOHN MARIN, is also aware that his
        sentence has not yet been determined by the Court. Defendant is
        aware that any estimate of probable sentencing range that he may
        have received from his counsel, the United States, or the proba-

                  6
        [A] defendant could not be said to have waived his right to
        appellate review of a sentence imposed in excess of the
        maximum penalty provided by statute or based on a consti-
        tutionally impermissible factor such as race. However, the
        sentence that Marin seeks to appeal is not such a sentence.
        Assuming the district court committed the errors that Marin
        alleges, his complaints at most rest on an improper applica-
        tion of the guidelines and a violation of a procedural rule.

Id. at 496. Thus, because we concluded that the plea agreement con-
tained an express waiver of Marin's right to appeal, which was know-
ing and voluntary, it precluded an appeal based on the claim that the
district court misapplied the Guidelines.

In Bowden, however, we considered a plea agreement with a differ-
ently worded appeal waiver and determined that it did not bar the
defendant from challenging the district court's application of the
Guidelines. See Bowden, 975 F.2d at 1081 n.1. In that case, the plea
agreement stated that the defendant "waives any appeal . . . if the sen-
tence imposed herein is within the guidelines." Id. After being sen-
tenced, Bowden sought to appeal his designation as an armed career
criminal under 18 U.S.C. § 924(e) as "not within the guidelines." Id.
(internal quotations omitted). We concluded that"a fair reading" of
the waiver provision in the plea agreement "preserve[d] Bowden's
right to challenge the district court's application of the Guidelines and
the armed career criminal enhancement of § 924(e)." Id. Accordingly,
we refused to find that Bowden had waived his right to appeal on this
ground.

Brown contends that his appeal falls within the ambit of Bowden,
and, therefore, the waiver does not bar his appeal. Brown maintains
_________________________________________________________________
        tion office is a prediction, not a promise, and is not binding on
        the United States, the probation office, or the Court. Realizing
        the uncertainty in estimating what sentence he will ultimately
        receive, Defendant knowingly waives his right to appeal the sen-
        tence in exchange for the concessions made by the United States
        in this agreement.

Marin, 961 F.2d at 494 n.1.

                   7
that his plea agreement appeal waiver was predicated upon the condi-
tion that he be sentenced according to a proper application of the
Guidelines and, thus, he can appeal on the ground that his sentence
did not accord with the Guidelines. Despite Brown's protestations to
the contrary, this case is controlled by our ruling in Marin. The plea
agreement here contains an express, unqualified waiver of the right
to appeal "whatever sentence is imposed," which the district court
accepted only after thoroughly examining Brown as to his knowledge
of its terms and the voluntariness of his agreement. Such a waiver
precludes a claim that the given sentence resulted from a misapplica-
tion of the Guidelines.

Brown largely bases his contrary contention on language in para-
graph 3b of his plea agreement, which states that"[t]he Defendant
understands . . . [t]hat sentencing will be in accordance with the
United States Sentencing Guidelines." Relying on this language,
Brown argues that "[a]s a condition precedent to the waiver of his
appeal rights [his] sentence must be based upon a proper application
of the sentencing guidelines." The fundamental flaw in this argument
is that Brown's plea agreement, unlike Bowden's, did not "condition"
waiver of his appeal rights "on a proper application of the guidelines."
While Bowden's plea agreement provided that the defendant agreed
to "waive[ ] any appeal . . . if the sentence imposed . . . [wa]s within
the guidelines," Bowden, 975 F.2d at 1081 n.1 (emphasis added),
Brown agreed to waive the right to appeal "whatever sentence is
imposed on any ground, including any appeal pursuant to 18 U.S.C.
§ 3742." (emphasis added). Section 3742 provides for "review of an
otherwise final sentence if the sentence . . . was imposed as a result
of an incorrect application of the sentencing guidelines." 18 U.S.C.
§ 3742(a)(2) (emphasis added). Thus, rather than making his waiver
contingent on a sentence proper under the Guidelines, Brown
expressly waived his right to appeal "whatever sentence" the court
imposed, "including" one based on an asserted"incorrect application"
of the Guidelines.

Brown's acknowledgment in paragraph 3b of the plea agreement
that he "underst[oo]d" that sentencing would be "in accordance with
the . . . Guidelines" does not change or qualify his unconditional
waiver of his right to appeal "any sentence . . . imposed on any
ground." A common sense reading of paragraph 3b indicates that its

                  8
purpose is merely to inform Brown that his sentence will be calcu-
lated using the Sentencing Guidelines. The paragraph does not, in any
way, condition the waiver of Brown's right to appeal on a proper
application of the Guidelines, as the plea in Bowden did. To read
paragraph 3b in the manner proposed by Brown would be to render
the unqualified waiver in paragraph 2b meaningless.

We note that the Ninth Circuit rejected an identical argument in
United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). In that
case, as here, the plea agreement contained a provision stating that the
defendant waived any right to appeal his sentence under 18 U.S.C.
§ 3742. See Bolinger, 940 F.2d at 479. The parties also agreed, how-
ever, that the district court could "depart upward or downward under
the sentencing guidelines" but could not impose a sentence exceeding
36 months. Id. After the district court imposed a sentence of 36
months, Bolinger sought to appeal on the ground that the court's
application of the Guidelines was illegal. Like Brown, Bolinger
claimed that his waiver was ineffective because his plea agreement
specified that he would be sentenced "under the guidelines." Id. at
480. The Bolinger court rejected that argument, reasoning that "[t]he
plain meaning of the plea agreement is that Bolinger waived his right
to appeal the sentence . . . unless he received a term of incarceration
in excess of 36 months." Id. The court explained that "focusing exclu-
sively on the `under the guidelines' language, ignores the plain mean-
ing of the plea agreement and fails to account adequately for the
express waiver of the section 3742 appeal right." Id. at 480 n.1. These
words are equally applicable here. See also United States v. Yemitan,
70 F.3d 746, 748 (2d Cir. 1995) (holding that if an express appeal
waiver "does not preclude a challenge to the sentence as unlawful,
then the covenant not to appeal becomes meaningless").

Nor, contrary to Brown's suggestion, does the district court's state-
ment during the plea colloquy, "[i]n other words, you can't appeal as
long as your sentence is in accordance with the law," support Brown's
contention that his waiver was conditioned upon a proper application
of the Guidelines. Such an argument is only possible if the district
court's remark is taken out of context. Read in the context of the plea
colloquy as a whole, the district court's statement clearly refers to the
two exceptions to the waiver listed in the plea agreement, namely
ineffective assistance of counsel and prosecutorial misconduct:

                  9
       The Court: Now, I point out to you paragraph 2-C. You
       agree to waive your rights -- correction, 2-B
       -- waive your right to appeal whatever sen-
       tence is imposed, reserving only the right to
       appeal based on prosecutorial misconduct or
       ineffective assistance of counsel. Do you
       understand that?

       Defendant: Yes, sir.

       The Court: In other words, you can't appeal as long as
       your sentence is in accordance with the law.

       Defendant: Yes, sir.

(Emphasis added). Thus, the district court carefully directed Brown's
attention to the precise paragraph in the plea agreement in which he
waived his right to appeal "whatever sentence is imposed," reserving
only an appeal based on "prosecutorial misconduct or ineffective
assistance," asked Brown if he understood the waiver, and then
repeated the waiver's scope "in other words" to be sure Brown under-
stood it.

During this colloquy, the district court did not state that the waiver
would allow appeals asserting misapplications of the Guidelines.
Moreover, the waiver provision that the district court referred Brown
to in the colloquy clearly provides that it precludes appeals under 18
U.S.C. § 3742 (the statute otherwise permitting appeals challenging
misapplications of the Guidelines). If we were to adopt Brown's inter-
pretation of the district court's remark, we would have to read the
express reference to § 3742 out of the plea agreement. Clearly, the
district judge did not intend his statement to render meaningless the
very language he sought to explain to Brown. Thus, Brown's reliance
on the district court's remark during the plea colloquy is misplaced.

It is certainly true that the plea agreement in this case was not art-
fully drafted. The appeal waiver, for example, excepted appeals based
on ineffective assistance of counsel or prosecutorial misconduct, but
failed to state that the waiver did not preclude an appeal of a sentence

                  10
in excess of the statutory maximum or based on an unconstitutional
factor, like race. In this regard, the waiver was inconsistent with our
precedent. See Marin, 961 F.2d at 496. Although we are troubled by
this defect and trust that the government will strive to draft more com-
plete agreements in the future, the deficiencies in this plea agreement
are not fatal to the validity of the waiver.

They are not fatal because the plea agreement stated in plain lan-
guage that Brown waived the right to appeal "whatever sentence
[was] imposed . . . including" an appeal pursuant to § 3742. Brown's
colloquy with the district court clearly reveals that Brown's plea,
including the waiver of his right to appeal, was knowing and volun-
tary. Indeed, Brown indicated to the district court that he understood
all the legal terms in the plea agreement after they had been explained
to him by his counsel.3 3 Even on appeal, Brown makes no claim that
his attorney failed to explain the legal terms or consequences of each
provision of his plea agreement. This is particularly relevant because
although the appeal waiver did not expressly state that it governed
appeals of sentences calculated using the Sentencing Guidelines, it
did expressly state that it applied to any appeal pursuant to 18 U.S.C.
§ 3742.

Nor is the result we reach here inequitable. Rather, it simply holds
Brown to his bargain. As the Ninth Circuit noted in similar circum-
stances:

        Unlike a defendant who is sentenced after trial, a defendant
        who enters a plea bargain has some control over the terms
        of his sentence. If a defendant wants to ensure that he is sen-
        tenced in strict accordance with the guidelines, he can refuse
        to waive his right to appeal as a condition of the plea.

Bolinger, 940 F.2d at 480 n.1.
_________________________________________________________________
3 The Court: Did you understand all the terms in this plea agreement,
        the language, even any legal phrases that were in here
        after you talked with Mr. Parker about it?

Defendant: Yes, sir.

                   11
Given the explicit nature of the waiver in the plea agreement, its
specific mention of § 3742, and the thorough plea colloquy conducted
by the district court, we can only conclude that the waiver effectively
precludes this appeal. Accordingly, the appeal is

DISMISSED.

                  12
