                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4888


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

BRIAN MCNAIR,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-02342-RBH-1)


Submitted:   May 13, 2013                  Decided:   May 16, 2013


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


John M. Ervin, III, LAW OFFICES OF JOHN M. ERVIN, III,
Darlington, South Carolina, for Appellant. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Brian McNair pled guilty, pursuant to a written plea

agreement, to one count of possession with intent to distribute

cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)

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

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

are no meritorious issues for appeal but questioning whether the

district court complied with Fed. R. Crim. P. 11 at McNair’s

change of plea hearing and whether his sentence is reasonable.

McNair filed a pro se supplemental brief arguing that the Double

Jeopardy     Clause      of     the   Fifth     Amendment     bars       his     federal

prosecution.      Finding no error, we dismiss in part and affirm in

part.

             Prior      to    accepting   a   guilty     plea,     a   trial      court,

through colloquy with the defendant, must inform the defendant

of, and determine that the defendant understands, the nature of

the charge to which the plea is offered, any mandatory minimum

penalty, the maximum possible penalty he faces, and the various

rights he is relinquishing by pleading guilty.                     Fed. R. Crim. P.

11(b)(1).         The    district     court     also   must      ensure        that    the

defendant’s plea was voluntary, was supported by a sufficient

factual basis, and did not result from force or threats.                              Fed.

R.   Crim.   P.   11(b)(2),       (3).    Upon    review      of   the    record,       we



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conclude       that       the       district     court       complied      with      Rule     11’s

requirements.

               McNair       contends         that      his     federal         prosecution      is

unlawful because he had served a state sentence for the same

conduct.           The    Double       Jeopardy       Clause   of    the    Fifth      Amendment

protects       a    defendant          against      “the     imposition         of   cumulative

punishments for the same offense in a single criminal trial” and

“being     subjected            to     successive       prosecutions           for     the    same

offense.”          United States v. Goodine, 400 F.3d 202, 206 (4th Cir.

2005) (internal quotation marks and emphasis omitted).                                   However,

the    dual    or        separate      sovereigns        doctrine        permits     a    federal

prosecution         after       a    state   prosecution           for   the    same     offense.

Heath v. Alabama, 474 U.S. 82, 89 (1985); see also United States

v. Christmas, 222 F.3d 141, 145 (4th Cir. 2000) (citing Abbate

v.    United       States,       359    U.S.   187      (1959)).          We    conclude      that

McNair’s case is firmly within the dual sovereign exception.

Thus, we affirm McNair’s conviction.

               Turning to McNair’s sentence, we note that McNair and

the Government stipulated to a sentence as provided by Fed. R.

Crim. P. 11(c)(1)(C).                   Pursuant to 18 U.S.C. § 3742(a), (c)

(2006), “[w]here a defendant agrees to and receives a specific

sentence, he may appeal the sentence only if it was (1) imposed

in violation of the law, (2) imposed as a result of an incorrect

application         of     the       Guidelines,       or    (3)    is   greater       than    the

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sentence set forth in the plea agreement.”                        United States v.

Calderon, 428 F.3d 928, 932 (10th Cir. 2005).                         “Otherwise, the

Court   lacks    jurisdiction    over     the       appeal.”       Id.       Here,    the

district court imposed the specific sentence to which McNair

agreed, and the sentence did not exceed the statutory maximum.

Moreover, it could not have been imposed as a result of an

incorrect application of the Guidelines because it was based on

the parties’ Rule 11(c)(1)(C) agreement and not on the district

court’s calculation of the Guidelines.                    See United States v.

Brown, 653 F.3d 337, 339-40 (4th Cir. 2011); United States v.

Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005).                             We therefore

dismiss McNair’s appeal to the extent that he challenges the

stipulated sentence.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm McNair’s conviction, and dismiss McNair’s

appeal to the extent he challenges his sentence.                            This court

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

petition   the   Supreme     Court   of       the   United      States     for   further

review.     If    McNair     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 McNair.

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            Accordingly,    we   dispense   with   oral   argument   because

the facts and legal contentions are adequately presented in the

materials   before   this    court   and    argument   will   not    aid   the

decisional process.

                                                          AFFIRMED IN PART;
                                                          DISMISSED IN PART




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