                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4888


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT LEE MILLER, a/k/a Bobby,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00032-FPS-JES-3)


Submitted:   April 22, 2010                 Decided:   May 20, 2010


Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia, for Appellant. John C. Parr, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Robert Lee Miller appeals his conviction and sentence

of   twenty-four   months    of    imprisonment   imposed     after    he    pled

guilty, pursuant to a plea agreement, to one count of aiding and

abetting the distribution of cocaine base within 1000 feet of a

protected location, in violation of 21 U.S.C. §§ 841(a)(1), 860

(2006).    On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he states there are no

meritorious   issues     for      appeal,   but   questions     whether      the

district   court     erred   in   accepting    Miller’s   guilty      plea   and

concluding    that     his     plea   was     knowing,    intelligent,       and

voluntary.    Miller was advised of his right to file a pro se

supplemental brief, but has not filed a brief.                The Government

has moved to dismiss Miller’s appeal based upon a waiver of

appellate rights in his plea agreement.

           This court reviews the validity of a waiver de novo,

United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000),

and will uphold a waiver of appellate rights if the waiver is

valid and the issue being appealed is covered by the waiver.

United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).                      A

waiver is valid if the defendant’s agreement to the waiver was

knowing and voluntary.         United States v. Marin, 961 F.2d 493,

496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165,

167 (4th Cir. 1991).

                                       2
             To     determine      whether        a       waiver        is        knowing    and

intelligent,        this     court     examines            “the      totality         of     the

circumstances,         including     the    experience            and    conduct       of    the

accused, as well as the accused’s educational background and

familiarity       with   the   terms       of   the       plea    agreement.”           United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal

quotation marks omitted).             Generally, if a district court fully

questions a defendant regarding the waiver of appellate rights

during the Fed. R. Crim. P. 11 colloquy, the waiver is valid.

Wessells, 936 F.2d at 167-68.                   In this case, Miller does not

assert that his waiver was not voluntary, and our review of the

record leads us to conclude that Miller’s waiver of his right to

appeal   was      knowing    and   voluntary          and    should       be      enforced   to

preclude any review of potential sentencing error.                                    Miller’s

waiver   does     not,     however,    include        a     waiver      of     his   right    to

appeal   his      conviction,      which        counsel      raises          by    questioning

whether the district court complied with Fed. R. Crim. P. 11 and

properly       found     Miller’s      plea        knowing,             intelligent,         and

voluntary.

             Because Miller did not move in the district court to

withdraw his guilty plea, any error in the Rule 11 hearing is

reviewed for plain error.              United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).             The record reveals that the district

court substantially complied with the requirements of Rule 11 in

                                            3
accepting Miller’s guilty plea, and ensured that Miller’s plea

was knowing and voluntary and supported by a sufficient factual

basis.      See United States v. DeFusco, 949 F.2d 114, 116, 119-20

(4th Cir. 1991).

             Accordingly,      we     deny      the    Government’s          motion   to

dismiss in part and affirm Miller’s conviction.                         We grant the

motion to dismiss with regard to any potential sentencing error

that may be revealed by our review pursuant to Anders.                                In

accordance with Anders, we have reviewed the entire record in

this case and have found no meritorious issues for appeal that

are not encompassed by the appeal waiver.                     This court requires

that counsel inform Miller, in writing, of the right to petition

the Supreme Court of the United States for further review.                            If

Miller 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

Miller.      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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