                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5130


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TODD BELL,

                Defendant – Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:09-cr-00219-RDB-3)


Submitted:   July 11, 2011                 Decided:    July 18, 2011


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam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


Megan E. Green, MARCUSBONSIB, LLC, Greenbelt,         Maryland, for
Appellant.    Michael Joseph Leotta, Assistant        United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Todd Bell appeals from his convictions and sentence

for possession and brandishing a firearm in furtherance of a

crime     of     violence,       in     violation         of     18     U.S.C.     §§    2,

924(c)(1)(A)(i), (ii) (2006).                 On appeal, Bell's attorney has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),    asserting      that    there      are     no   meritorious      grounds      for

appeal,    but    questioning         whether    the      district     court     committed

plain error when it commingled the elements of the two distinct

offenses in 18 U.S.C. § 924(c)(1)(A) during the plea colloquy.

Bell was informed of his right to file a pro se supplemental

brief but has not done so.              The Government has filed a motion to

dismiss    the     appeal    on       the    basis     of      the    appellate    waiver

provision in Bell's plea agreement.

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

right to appeal under 18 U.S.C. § 3742 (2006).                         United States v.

Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                              We review the

validity of an appellate waiver de novo, and we will uphold a

waiver of appellate rights if the waiver is valid and the issue

being   appealed     is    covered      by   the     waiver.          United   States    v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005).                        An appellate waiver

is valid if the defendant’s agreement to the waiver was knowing

and intelligent.          Id. at 169.        To determine whether a waiver is

knowing    and     intelligent,         we   examine        “the      totality    of    the

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circumstances,       including        the     experience          and    conduct    of    the

accused, as well as the accused’s educational background and

familiarity       with    the    terms      of     the    plea    agreement.”         United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal

quotation marks and citation omitted).                         Generally, if a district

court     fully    questions      a     defendant         regarding       the    waiver    of

appellate rights during the Fed. R. Crim. P. 11 colloquy, and

the   record      indicates      that    the       defendant      understood       the    full

significance       of     the    waiver       and        was    not     denied     effective

assistance of counsel, the waiver is valid.                             United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

             A review of the Rule 11 hearing transcript confirms

that Bell knowingly and intelligently waived his right to appeal

his sentence.            Bell explicitly waived his right to appeal a

sentence of 384 months.               Bell confirmed at his Rule 11 hearing

that he read the indictment and understood the plea agreement.

The district court conducted the colloquy required under Rule

11, ensuring that Bell understood the waiver and was competent

to enter the plea.              We therefore conclude that Bell knowingly

and   intelligently        waived       the      right     to    appeal    his     sentence.

Accordingly, we grant the motion to dismiss as to any sentencing

issues, precluding our review of Bell's sentence pursuant to

Anders.



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               The waiver provision, however, did not waive Bell's

right    to    appeal      his    convictions.                Defense    counsel       questions

whether the district court erred when it described the elements

of the offense with which Bell was charged using both "use and

carry" and "possession" terminology.                           Because Bell did not move

to withdraw his guilty plea in the district court or raise any

objections        during    the    Rule      11        hearing,    the    plea   colloquy     is

reviewed for plain error.                     General, 278 F.3d at 393; United

States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).                                      To

demonstrate plain error, a defendant must show that: (1) there

was    an   error;      (2)      the    error      was        plain;    and   (3)   the   error

affected his “substantial rights.”                        United States v. Olano, 507

U.S.    725,      732   (1993).         A    defendant’s          substantial       rights    are

affected if the Court determines that the error “influenced the

defendant’s decision to plead guilty and impaired his ability to

evaluate with eyes open the direct attendant risks of accepting

criminal responsibility.”                   United States v. Goins, 51 F.3d 400,

402-03 (4th Cir. 1995) (internal quotation marks omitted); see

also Martinez, 277 F.3d at 532 (holding that a defendant must

demonstrate         that   he    would       not       have    pled    guilty    but    for   the

error).

               We   hold    that       the   court        did    not    commit   plain    error

during      the     colloquy.            Any       error        did    not    affect      Bell's

substantial rights, as he does not show that he would not have

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pled    guilty    but    for    the     district           court's   description          of    the

charges.       Indeed, Bell made the initial decision to plead guilty

on the basis of the indictment, in which the offense is listed

correctly.       At the Rule 11 hearing, Bell assured the court that

he had reviewed the indictment, discussed the charges and his

plea with his attorney, and understood the charges to which he

was pleading guilty.                Bell's claim that he failed to receive

adequate notice of the charges is insufficient to overcome his

sworn statements at his Rule 11 hearing.                                 See Blackledge v.

Allison, 431 U.S. 63, 74 (1977).                       In accordance with Anders, we

have    thoroughly       examined          the       entire      record    for     any     other

potentially meritorious issues not covered by the waiver and

have found none.             Accordingly, we deny the Government's motion

to    dismiss     as    to     Bell's      convictions,            and    we    affirm     those

convictions.

               In sum, the Government's motion to dismiss is granted

in part and denied in part, Bell's Anders appeal of his sentence

is    dismissed,       and   his    convictions            are   affirmed.         This    Court

requires that counsel inform Bell, in writing, of his right to

petition    the    Supreme         Court    of       the    United   States       for    further

review.    If Bell 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

                                                 5
was served on Bell.          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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