                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4272


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LARRY LAVONNE BERRY,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00247-FL-1)


Submitted:   September 12, 2011          Decided:   September 21, 2011


Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Jason R. Harris, WELCH & HARRIS, LLP, Jacksonville, North
Carolina, for Appellant. Edward D. Gray, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Larry Berry pled guilty pursuant to a plea agreement

to armed bank robbery and aiding and abetting, in violation of

18 U.S.C.A. §§ 2, 2113 (West 2000 & Supp. 2011); using a firearm

during a crime of violence and aiding and abetting, in violation

of   18   U.S.C.A.      §§ 2,   924(c)(1)(A)              (West    2000   &    Supp.    2011);

interference with commerce by robbery and aiding and abetting,

in violation of 18 U.S.C. §§ 2, 1951 (2006); and being a felon

in    possession     of    a    firearm,            in    violation       of   18     U.S.C.A.

§§ 922(g)(1), 924 (West 2000 & Supp. 2011), and was sentenced to

302 months in prison.            Counsel has filed an appeal pursuant to

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

            In     the    Anders      brief,             counsel    concedes        that     the

appellate waiver contained in Berry’s plea agreement precludes

his appeal as to his sentence, but nonetheless suggests that the

district    court       erred    when      it       calculated      Berry’s         Guidelines

ranges.    Berry has filed a pro se supplemental brief, as well as

a    supplement    to    his    pro   se    supplemental           brief,      in    which    he

challenges the district court’s decision to sentence him as an

armed career criminal under the Armed Career Criminal Act, 18

U.S.C.A. § 924(e) (West 2000 & Supp. 2011).                                The Government

moves to dismiss the appeal as to Berry’s sentence based on the

appellate waiver in Berry’s plea agreement.                           We affirm in part

and dismiss in part.

                                                2
            A     defendant      may     waive      the     right     to    appeal      if     that

waiver   is      knowing     and    intelligent.                See       United      States     v.

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).                              Our independent

review     of    the      record    supports          the     conclusion             that     Berry

voluntarily       and     knowingly       waived        his     right       to       appeal    his

sentence.         Thus,    we    conclude        that     the      waiver       is    valid    and

enforceable.

            However,        even    a     valid      waiver        does     not       waive    all

appellate claims.          Specifically, a valid appeal waiver does not

preclude a challenge to a sentence on the ground that it exceeds

the    statutory        maximum     or     is       based     on      a    constitutionally

impermissible factor such as race, arises from the denial of a

motion to withdraw a guilty plea based on ineffective assistance

of counsel, or relates to claims concerning a violation of the

Sixth Amendment right to counsel in proceedings following the

guilty plea.           See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th

Cir.   1993).          Moreover,   the     appellate          waiver       in    Berry’s      plea

agreement did not waive: (1) any challenges he may have if his

sentence        were     above     the     Guidelines           range        calculated         at

sentencing;       (2)    certain    ineffective           assistance         of      counsel     or

prosecutorial misconduct claims; or (3) any claims Berry may

have pertaining to his conviction.                        Berry’s sentence is within



                                                3
the Guidelines ranges calculated at sentencing and he raises no

claims that fall outside the scope of his appellate waiver.

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

appeal as to Berry’s sentence.                Although we are charged under

Anders with reviewing the record for unwaived error, we have

reviewed the record in this case and have found no unwaived and

meritorious issues for appeal.               We therefore dismiss the appeal

in part and affirm in part.              This court requires that counsel

inform Berry, in writing, of his right to petition the Supreme

Court   of    the    United    States    for    further    review.    If   Berry

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move this

court   for    leave    to    withdraw   from    representation.      Counsel’s

motion must state that a copy thereof was served on Berry.                   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.



                                                            DISMISSED IN PART;
                                                              AFFIRMED IN PART




                                         4
