                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4812


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LUIS ALBERTO BECERRA,       a/k/a Flaco,     a/k/a Luis Alberto
Billeda Becerra, a/k/a      Luis Avilleda    Becerra, a/k/a Luis
Garcia Munoz,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
District Judge. (7:09-cr-00079-D-1)


Submitted:   April 29, 2011                       Decided:   June 2, 2011


Before MOTZ and    SHEDD,     Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Dismissed in part and affirmed in part by unpublished per curiam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


Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, 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Unpublished opinions are not binding precedent in this circuit.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:

             Luis       Alberto     Becerra        pled     guilty,       pursuant         to     a

written plea agreement, to conspiracy to possess with intent to

distribute 500 grams or more of cocaine powder, and fifty grams

or more of cocaine base, in violation of 21 U.S.C. §§ 841(a),

846 (2006).        Becerra was sentenced to 120 months in prison.

             On     appeal,       Becerra’s        counsel        has     filed      a     brief

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

that,   in    his       opinion,    there     are     no        meritorious      issues         for

appeal,      but    questioning        whether       Becerra’s          guilty      plea        was

knowing and voluntary.                 Counsel argues that Becerra’s guilty

plea to the count of the indictment charging him with conspiracy

to possess with intent to distribute cocaine base was invalid.

Counsel concedes, however, that Becerra’s plea to the portion of

the same count concerning cocaine powder was valid.                                      Counsel

appears to         bifurcate    the     two   substances          charged      in    the     same

count into two separate and distinct charges, and claims that

Becerra’s     plea      was    valid    as    to     one    but     not   to     the       other.

Accordingly,        counsel       argues      that    Becerra        should         have     been

subject      to     a     mandatory        minimum         of     only    sixty          months’

imprisonment        for   pleading      guilty       to    conspiring       to      distribute

cocaine powder pursuant to 21 U.S.C § 841(b)(1)(B), rather than

the 120-month mandatory minimum sentence imposed pursuant to 21

U.S.C. § 841(b)(1)(A).

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            The Government filed a motion to dismiss the appeal

based on the appellate waiver in the plea agreement, arguing

that    Becerra    knowingly      and    voluntarily      waived    his    right    to

appeal his sentence, and the issue he seeks to raise on appeal

falls    within     the   scope     of   the    waiver.      Becerra’s       counsel

responded,      acknowledging     that    Becerra’s      waiver     is    valid,    but

arguing that, because this is an Anders appeal, this appeal is

outside the scope of the waiver.                Becerra was informed of his

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

            We review de novo the question of “whether a defendant

has    waived    his   right   of    appeal     in     connection    with    a     plea

proceeding.”       United States v. Manigan, 592 F.3d 621, 626 (4th

Cir.    2010)     (internal    quotation       marks    omitted).         Where    the

government seeks to enforce an appeal waiver and the appellant

does not contend that the government is in breach of the plea

agreement, a waiver will be enforced if the record shows the

waiver is valid and the challenged issue falls within the scope

of the waiver.         United States v. Blick, 408 F.3d 162, 168 (4th

Cir. 2005).       An appeal waiver is valid if it is “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 omitted).

            Our review of the record leads us to conclude that

Becerra validly waived the right to appeal his sentence, and has

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thus waived review of the sentencing issue he raises and any

sentencing error that may be revealed pursuant to our Anders

review.     Thus, we grant the Government’s motion to dismiss the

appeal in part as it pertains to Becerra’s sentence.

               The   waiver      provision          does     not,      however,     preclude

Becerra’s appeal of his conviction.                         Accordingly, we deny the

motion    to     dismiss    as     it    pertains          to    Becerra’s       conviction.

Because Becerra did not move in the district court to withdraw

his   guilty     plea,     the    Rule    11       hearing      is    reviewed    for   plain

error.    United States v. Martinez, 277 F.3d 517, 525 (4th Cir.

2002).    “To establish plain error, [Becerra] must show that an

error occurred, that the error was plain, and the error affected

his substantial rights.”                United States v. Muhammad, 478 F.3d

247, 249 (4th Cir. 2007).               Even if Becerra makes this three-part

showing, this Court may exercise its discretion to correct the

error only if it “seriously affects the fairness, integrity or

public reputation of judicial proceedings.”                              United States v.

Lynn,    592    F.3d   572,      577    (4th    Cir.       2010)      (internal    quotation

marks omitted).

               Prior to accepting a guilty plea, the district court,

through colloquy with the defendant in open court, must inform

the defendant of, and determine that the defendant understands

the nature of the charges to which the plea is offered, any

mandatory       minimum    penalty,       the       maximum          possible    penalty   he

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faces, and the various rights he is relinquishing by pleading

guilty.     Fed. R. Crim. P. 11(b).          The court must also ascertain

that the plea is voluntary.             Fed. R. Crim. P. 11(b)(2).                  In

addition,       “[b]efore    entering   judgment      on   a   guilty     plea,     the

court    must    determine    that   there   is   a   factual       basis    for   the

plea.”     Fed. R. Crim. P. 11(b)(3).              Our review of the record

leads us to conclude that the district court complied with the

Rule 11 requirements, and Becerra’s guilty plea was knowing and

voluntary and supported by an adequate factual basis.

            In accordance with Anders, we have reviewed the entire

record and have found no unwaived and potentially meritorious

issues for review.          Accordingly, while we grant the Government’s

motion to dismiss in part, we affirm Becerra’s conviction.                         This

court requires that counsel inform Becerra in writing of his

right to petition the Supreme Court of the United States for

further review.        If Becerra 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 Becerra.

            We dispense with oral argument because the facts and

legal    contentions    are     adequately    presented        in   the     materials




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before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                       DISMISSED IN PART;
                                                         AFFIRMED IN PART




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