                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 14-4403


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

ALFONSO CARNEY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:13-cr-00232-REP-1)


Submitted:   November 20, 2014              Decided:   November 24, 2014


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


Affirmed in part and dismissed in part by unpublished per curiam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


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Paul G. Gill, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant.  Stephen Wiley Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Alfonzo Carney appeals his convictions and 115-month

sentence imposed following his guilty plea to possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2012), and

distribution and possession with intent to distribute cocaine

base, 21 U.S.C. § 841 (2012).                   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   magistrate      judge   adequately     complied

with Fed. R. Crim. P. 11 in conducting the plea colloquy.                        The

Government      has   moved    to    dismiss      the   appeal,   citing   Carney’s

waiver    of    appeal   rights      in    his   plea   agreement.      Carney   was

informed of his right to file a pro se supplemental brief but

has not done so.         For the reasons that follow, we affirm in part

and dismiss in part.

               We review de novo the validity of an appeal waiver.

United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.

denied, 134 S. Ct. 126 (2013).                   “We generally will enforce a

waiver . . . if the record establishes that the waiver is valid

and that the issue being appealed is within the scope of the

waiver.”       United States v. Thornsbury, 670 F.3d 532, 537 (4th

Cir. 2012) (internal quotation marks and alteration omitted).                      A

defendant’s waiver is valid if he agreed to it “knowingly and

intelligently.”          United States v. Manigan, 592 F.3d 621, 627

                                            2
(4th Cir. 2010).            Our review of the record leads us to conclude

that Carney knowingly and voluntarily waived the right to appeal

any sentence within the statutory maximum.                            Because the district

court imposed a sentence below the statutory maximum on both

counts, we grant in part the Government’s motion to dismiss and

dismiss the appeal of Carney’s sentence.

            Although Carney agreed to waive his right to appeal

his convictions in his plea agreement, a defendant’s waiver of

appellate       rights      in       any   event       cannot     foreclose     a     colorable

constitutional        challenge            to    the    voluntariness      of       the    guilty

plea.    See, e.g.,         United States v. Attar, 38 F.3d 727, 732–33 &

n.2 (4th Cir. 1994).                  Here, Carney challenges the validity of

his guilty plea.            Before accepting a guilty plea, the district

court   must     conduct         a    plea      colloquy     in   which   it    informs          the

defendant of, and determines that the defendant comprehends, the

nature of the charge to which he is pleading guilty, the maximum

possible penalty he faces, any mandatory minimum penalty, and

the rights he is relinquishing by pleading guilty.                                        Fed. R.

Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th

Cir.    1991).        The    court         also    must      ensure    that     the       plea   is

voluntary, supported by an independent factual basis, and not

the    result    of   force,          threats,         or   promises    outside       the    plea

agreement.       Fed. R. Crim. P. 11(b)(2), (3).



                                                  3
                 Because Carney did not assert in the district court

any error in the plea proceedings, we review the adequacy of his

plea colloquy for plain error.                       United States v. Massenburg, 564

F.3d 337, 342 (4th Cir. 2009).                       To establish plain error, Carney

must    demonstrate           that      (1)   the        district   court      erred,      (2)    the

error      was    plain,      and       (3)   the    error      affected       his    substantial

rights.          Henderson         v.    United      States,      133    S.    Ct.    1121,      1126

(2013).          In     the    guilty         plea       context,      an     error    affects     a

defendant’s substantial rights if he demonstrates a reasonable

probability        that       he    would      not       have   pled    guilty       but   for    the

error.      Massenburg, 564 F.3d at 343.                        Even if these requirements

are met, we will “exercise our discretion to correct the error

only if it seriously affects the fairness, integrity or public

reputation         of      judicial           proceedings.”             United        States       v.

Nicholson, 676 F.3d 376, 381 (4th Cir. 2012) (internal quotation

marks omitted).

                 Our review of the record reveals that the magistrate

judge substantially complied with the requirements of Rule 11 in

conducting the plea colloquy. *                       While the record discloses that

the magistrate judge did not expressly ask Carney whether he had

been    forced        or   threatened         into       pleading      guilty,       see   Fed.    R.


       *
       Carney consented to having a magistrate judge preside over
the Rule 11 proceedings.



                                                     4
Crim.    P.    11(b)(2),         we    are   satisfied       that      any    error    did     not

affect Carney’s substantial rights.                    See Massenburg, 564 F.3d at

343.          The    magistrate         judge       otherwise       complied          with    the

requirements of Rule 11, ensuring that the plea was knowing,

voluntary, and supported by a factual basis.                            We therefore find

the plea valid and enforceable.

               In accordance with Anders, we have reviewed the record

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

We therefore affirm Carney’s convictions and dismiss the appeal

as to his sentence.                   This court requires that counsel inform

Carney, in writing, of the right to petition the Supreme Court

of the United States for further review.                               If Carney 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    Carney.         We

dispense       with       oral    argument         because       the    facts     and        legal

contentions         are    adequately        presented      in    the    materials       before

this court and argument would not aid the decisional process.



                                                                         AFFIRMED IN PART;
                                                                         DISMISSED IN PART




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