                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4986


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROBERT TRULL,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00084-MR-2)


Submitted:   September 27, 2011           Decided:   October 17, 2011


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam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


Lawrence W. Hewitt, GUTHRIE, DAVIS, HENDERSON & STATON,
P.L.L.C., Charlotte, North Carolina, for Appellant.     Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Robert Trull pled guilty, pursuant to a written plea

agreement, to conspiracy to distribute and possess with intent

to distribute cocaine base, in violation of 21 U.S.C.A. §§ 846,

841(b)(1)(B)     (West    1999    &    Supp.    2011).       The    district         court

sentenced him to seventy months’ imprisonment, the bottom of the

Guidelines range.        Trull appealed, and his counsel filed a brief

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

concluding that there are no meritorious grounds for appeal but

questioning whether the district court erred in declining to

sentence    Trull   pursuant      to    the    Fair   Sentencing      Act       of     2010

(“FSA”), Pub. L. No. 111-220, 124 Stat. 2372, and the amended

Guidelines.      Trull has not filed a pro se supplemental brief.

Counsel    for   Trull   subsequently         filed   a    motion    to       remand    for

resentencing pursuant to the FSA.                In response, the Government

moved to dismiss Trull’s appeal based upon a waiver of appellate

rights in the plea agreement.             We affirm in part and dismiss in

part.

            Pursuant to a plea agreement, a defendant may waive

his appellate rights.        United States v. Manigan, 592 F.3d 621,

627 (4th Cir. 2010).         A waiver will preclude an appeal of a

specific issue if the waiver is valid and the issue is within

the scope of the waiver.           United States v. Blick, 408 F.3d 162,

168   (4th Cir. 2005).           The    question      of    whether       a    defendant

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validly waived his right to appeal is a question of law that

this court reviews de novo.              Manigan, 592 F.3d at 626.

               “An    appellate      waiver       is     valid       if     the    defendant

knowingly       and     intelligently       agreed       to    [waive       the    right    to

appeal].”       Id. at 627.       To determine whether a waiver is knowing

and    intelligent,       this     court     examines         “the    totality       of    the

circumstances.”             Id.     (internal          quotation          marks    omitted).

Generally, if the district court fully questions a defendant

regarding the waiver of his right to appeal during the Fed. R.

Crim. P. 11 colloquy, the waiver is both valid and enforceable.

Id.;     United         States      v.     Johnson,           410     F.3d        137,     151

(4th Cir. 2005).

               Trull does not contest the validity of the waiver or

the voluntariness of his guilty plea.                        Our review of the record

leads us to conclude that the waiver is valid and enforceable.

The    magistrate       judge     ensured    that       Trull       had    read    the     plea

agreement,       that     counsel    explained          it    to    him,     and    that    he

understood the consequences of the waiver.                           Because the waiver

is    valid,    it    precludes     review       of    the    sentencing      issue       Trull

seeks to raise on appeal and any potential issues related to the

conviction      that     are    covered    by     the    waiver.          Accordingly,      we

grant in part the Government’s motion to dismiss the appeal and

dismiss this portion of the appeal, and we deny Trull’s motion

to remand for resentencing.

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           Trull’s appellate waiver, however, does not preclude

an appeal of his conviction or sentence based upon ineffective

assistance      of     counsel     or     prosecutorial       misconduct.           In

accordance with Anders, we have reviewed the entire record in

this case and have found no meritorious issues for appeal that

are not encompassed by the appeal waiver.                   We therefore deny in

part the Government’s motion to dismiss and affirm this portion

of the appeal.

           This      court   requires       that    counsel       inform   Trull,    in

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

United States for further review.                   If Trull 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 Trull.                     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.



                                                                  AFFIRMED IN PART;
                                                                  DISMISSED IN PART




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