                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4195


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

JOSEPH TERRELL BRISCOE, a/k/a Dreads,

                  Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00065-JPB-DJJ-1)


Submitted:    December 15, 2008             Decided:   January 20, 2009


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


Dismissed in part; affirmed in part by unpublished per curiam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


Kirk H. Bottner, Charles Town, West Virginia, for Appellant.
Sharon L. Potter, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Joseph     Terrell     Briscoe      pled     guilty        pursuant          to   a

written     plea       agreement     to      distribution           of        cocaine      base

(“crack”), and he was sentenced to 168 months of imprisonment.

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

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

meritorious      grounds      for    appeal,       but    raising         the       following

issues:   (1)      whether    Briscoe       was    erroneously           sentenced         as   a

career offender because two of his three antecedent felonies

were    actually       misdemeanors       under    Maryland         law;       (2)       whether

Briscoe’s sentence as a career offender violated his (a) Fifth

Amendment      right    against     double       jeopardy,      and      (b)       his    Eighth

Amendment right against cruel and unusual punishment; and (3)

whether the district court erred by failing to grant a reduction

in Briscoe’s sentence, based on Amendment 706 to the Sentencing

Guidelines,      which     would    have    reduced       his   base       offense         level

under    U.S.    Sentencing        Guidelines      Manual       §     2D1.1(c)           (2007).

Despite   notice,       Briscoe     has    not    filed    a    pro      se    supplemental

brief.      For the reasons that follow, we dismiss in part and

affirm in part.

              There is a pending motion by the Government to dismiss

the appeal.      We grant the motion in part, noting that the record

reveals that Briscoe knowingly and voluntarily waived his right

to   appeal     his    sentence     in    his    plea    agreement        and       that    this

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waiver    was    specifically          reviewed     by    the        magistrate     judge      at

Briscoe’s plea hearing in compliance with Fed. R. Crim. P. 11.

United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.

1995);    United     States      v.    Marin,     961     F.2d       493,    496   (4th     Cir.

1992).     Moreover, we find no exceptions to the waiver rule as

the sentence imposed was not in excess of the statutory maximum,

and there is no challenge to the validity of the guilty plea,

United States v. General, 278 F.3d 389, 399-400 (4th Cir. 2002);

there     is    no   evidence         that   the     sentence          was       based    on    a

constitutionally impermissible factor, Marin, 961 F.2d at 496;

and there is no indication that the proceedings were conducted

in violation of the Sixth Amendment right to counsel.                                    United

States     v.     Attar,    38        F.3d   727,        732-33       (4th       Cir.    1994).

Accordingly, we dismiss the appeal of Briscoe’s sentence.

               In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.         Accordingly,      we    affirm      Briscoe’s          conviction.          This

court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further    review.         If    the    client     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 the client.                         We dispense with oral

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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




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