                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4769



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DOMINIC ANTHONY DICLEMENTE,

                                             Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-7885)


Submitted:   September 26, 2005         Decided:    November 23, 2005


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Oldric J. Labell, Jr., Newport News, Virginia, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Dominic Anthony Diclemente pled guilty to one count of

conspiracy with intent to distribute cocaine base, in violation of

21 U.S.C. § 846 (2000).          In his plea agreement, Diclemente waived

“the right to contest either the conviction or the sentence in any

direct    appeal    or   other   post-conviction     action,    including     any

proceeding under 28 U.S.C. § 2255.”              The agreement provides that

the waiver does not apply to claims of ineffective assistance of

counsel or prosecutorial misconduct.

            Finding that Diclemente’s plea was knowing and voluntary,

the magistrate judge accepted his guilty plea on June 16, 1995.               At

sentencing    on    April     15,   1996,    the   district    court   reviewed

Diclemente’s answers at the Fed. R. Crim. P. 11 hearing, and

confirmed that he had entered his plea freely and voluntarily, that

he understood the consequences of his plea, and that he was

adequately represented by counsel.             The district court sentenced

Diclemente to 262 months of imprisonment.

            On appeal, Diclemente sought to raise the following

claims:    (1) the court erred in sentencing him for crack cocaine

rather than powder cocaine; (2) the court erred in sentencing him

as   a   career    offender    under   the     guidelines;    (3)   counsel   was

ineffective at sentencing with respect to the above-mentioned

grounds and for failing to move for a downward departure; and (4)

the court erred in denying his Fed. R. Crim. P. 35 motion.                    The


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Government moved to dismiss the appeal based on Diclemente’s waiver

of his appellate rights in his plea agreement.        On July 7, 2004, we

granted the Government’s motion and dismissed the appeal.

            On December 27, 2004, Diclemente filed a petition for

writ of certiorari, which the Supreme Court granted on February 28,

2005.    The Supreme Court remanded the matter to this court in light

of its decision in United States v. Booker, 125 S. Ct. 738 (2005).

In Booker, the Supreme Court held that the mandatory manner in

which the federal sentencing guidelines required courts to impose

sentencing enhancements based on facts found by the court by a

preponderance of the evidence violated the Sixth Amendment.              125

S. Ct. at 746, 750.     However, we have held in two recent cases that

a plea agreement waiver of the right to appeal that was accepted

prior to the Supreme Court’s decision in Booker was not invalidated

by the change in law effected by that decision.          United States v.

Johnson, 410 F.3d 137 (4th Cir. 2005), petition for cert. filed,

        U.S.L.W.         (U.S. Sept. 7, 2005) (No. 05-6215); United

States v. Blick, 408 F.3d 162 (4th Cir. 2005).         Thus, the issuance

of     Booker   does   not   render    Diclemente’s   plea   unknowing    or

involuntary, nor does Diclemente’s Booker challenge fall beyond the

scope of his pre-Booker appeal waiver.          See Johnson, 410 F.3d at

153.

            Accordingly, we reinstate our July 7, 2004 judgment

dismissing Diclemente’s appeal.          We dispense with oral argument


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because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

                                                         DISMISSED




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