                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4004


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CARLOS MORALES LOPEZ, a/k/a Tatone,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:09-cr-00049-RLV-DCK-2)


Submitted:   April 23, 2012                 Decided:   May 10, 2012


Before KING, KEENAN, and WYNN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Faith S. Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Carlos       Lopez      appeals         his     conviction      and        210-month

sentence for conspiracy to distribute and possess with intent to

distribute at least five kilograms of cocaine and at least fifty

grams of cocaine base, in violation of 21 U.S.C. § 846 (2006).

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

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

meritorious       grounds       for      appeal       but       questioning       whether        an

incomplete       transcript        of     the        guilty      plea    hearing         renders

effective appellate review impossible, and whether the district

court erred in failing to sufficiently explain Lopez’s sentence.

Lopez    filed    a   pro     se       supplemental         brief    claiming          that     the

district   court      erred       in    enhancing         his    sentence    based       on     his

coconspirator’s possession of a firearm.

            The Government initially declined to file a response

brief.     Pursuant to our review under Anders, we directed the

Government       to   file    a    brief       addressing         the    adequacy        of     the

district court’s explanation for the sentence.                           In the resulting

brief, the Government not only addresses the sentencing issue

but asserts       that    the      appellate         waiver      provision       in    the     plea

agreement bars any claim of sentencing error, and urges us to

enforce the waiver and dismiss the appeal.                              We affirm in part

and dismiss in part.



                                                2
               We review de novo the validity of a defendant’s waiver

of appellate rights.               United States v. Blick, 408 F.3d 162, 168

(4th Cir. 2005).            “A defendant may waive his right to appeal if

that waiver is the result of a knowing and intelligent decision

to forgo the right to appeal.”                  United States v. Amaya-Portillo,

423    F.3d     427,      430   (4th    Cir.    2005)       (internal         quotation    marks

omitted).           To    determine      whether          the   waiver     is    knowing      and

intelligent,         we    look    to   “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).        We will enforce a valid waiver so long as “the issue

being appealed is within the scope of the waiver.”                                    Blick, 408

F.3d at 168.

               In    the    plea    agreement,            Lopez    agreed       to    waive   all

appellate rights relating to his conviction and sentence except

for claims of ineffective assistance of counsel or prosecutorial

misconduct.          Moreover, the agreement specifically states that

Lopez waives his “to appeal whatever sentence is imposed.”                                    Our

review    of     the      record    convinces         us    that       Lopez’s       waiver   was

knowing       and    intelligent.          We       are    well    able,       even    with   the




                                                3
partial transcript of the guilty plea hearing, * to conclude that

under      the    totality      of    the    circumstances,            Lopez’s    waiver    of

appellate rights was knowing and voluntary.

                 Turning to the scope of the waiver, we conclude that

the sentencing issues raised by counsel in the Anders briefs and

by Lopez in the pro se supplemental brief fall within the scope

of the appellate waiver provision, and we dismiss the appeal as

to those claims.

                 In accordance with Anders, we have thoroughly examined

the entire record for any other potentially meritorious issues

outside the scope of Lopez’s appeal waiver and have found none.

Therefore        we   affirm    in    part    as        to    any    potential   claims    not

foreclosed by the waiver provision, and dismiss the appeal in

part as to those claims encompassed by the waiver.                                This court

requires that counsel inform Lopez, in writing, of the right to

petition     the      Supreme    Court       of       the    United    States    for   further

review.      If Lopez 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 Lopez.            We dispense with oral argument because the

      *
       The transcript is incomplete as it was created from a
digital recording that ended prior to the conclusion of the
hearing.



                                                  4
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




                                      5
