                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4228


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMAL SIDDQ RICKENBACKER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cr-00536-RWT-1)


Submitted:   January 13, 2011             Decided:   January 18, 2011


Before MOTZ, KING, and WYNN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Stacy Dawson Belf, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jamal Siddq Rickenbacker pled guilty to distribution

of   cocaine      base   and   possession        of   a   firearm     by   a     convicted

felon.     He was sentenced within his advisory Guidelines range to

168 months in prison.          On appeal, his attorney has filed a brief

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

concluding that there were no meritorious issues for appeal but

questioning whether the Government acted in bad faith by moving

for only a one-level departure under U.S. Sentencing Guidelines

Manual § 5K1.1 (2009).           Although informed of his right to do so,

Rickenbacker has not filed a pro se supplemental brief.                                The

Government        has    moved      to    dismiss         the    appeal        based    on

Rickenbacker’s waiver of appellate rights in his plea agreement.

We grant the motion in part and dismiss the appeal with regard

to Rickenbacker’s sentence.              After a review of the record under

Anders, we affirm Rickenbacker’s convictions.

            A defendant may, in a valid plea agreement, waive the

right to appeal.         United States v. Wiggins, 905 F.2d 51, 53 (4th

Cir. 1990).         Any such waiver must be made by a knowing and

intelligent       decision     to   forgo       the   right     to   appeal.        United

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995).

Whether a defendant has effectively waived his right to appeal

is an issue of law we review de novo.                     United States v. Marin,

961 F.2d 493, 496 (4th Cir. 1992).

                                            2
                The   district     court’s         plea    colloquy          was    thorough,

conformed        to   the   dictates      of       Fed.     R.    Crim.       P.        11,   and

specifically          addressed     the       appellate          waiver.            Moreover,

Rickenbacker does not challenge the voluntariness of his waiver.

Accordingly, the waiver is enforceable.

                The   waiver      expressly         precluded      Rickenbacker               from

appealing any sentence within or below the advisory Guidelines

range “resulting from an adjusted base offense level of 31.”

Because the sentence imposed was within the advisory range based

upon       an   offense   level    of   29,       any    challenge      to    the       district

court’s         sentence,   including         Rickenbacker’s            claim       that      the

Government        arbitrarily      decided         not     to    move     for       a     larger

reduction, * falls within the scope of that waiver.                             As such, we

grant the Government’s motion to dismiss Rickenbacker’s appeal

of his sentence.




       *
       Rickenbacker’s assertion is based entirely on conjecture.
He asserts that the Government’s decision to move for only a
one-level reduction, rather than the maximum two levels
contemplated by the plea agreement or the four levels urged by
Rickenbacker, was “arbitrary.” However, he does not assert that
the Government’s decision was based upon unconstitutional
motives, and there is no evidence in the record to support such
a claim. Moreover, Rickenbacker does not claim, and the record
does not support, that the court based the imposed sentence on
an unconstitutional motive.       See Marin, 961 F.2d at 496
(defendant cannot waive right to appeal on the basis that the
subject   sentence   was   imposed   based  on  constitutionally
impermissible factor such as race).



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           However,       the        waiver’s       enforceability         does      not

completely     dispose    of    this      appeal.      Rickenbacker’s        appellate

waiver did not waive his right to appeal his conviction.                       Though

Rickenbacker     does     not    raise       a     specific    challenge      to     his

conviction, pursuant to Anders, we must review the record for

any   meritorious     issues.        In    accordance      with    Anders,    we     have

reviewed the entire record and found no viable claims regarding

Rickenbacker’s conviction.

           Accordingly,         we     affirm      Rickenbacker’s      convictions.

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

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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