                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4586


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

     v.

STANLEY SMITH, a/k/a Styles,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:10-cr-00174-1)


Submitted:   January 25, 2012             Decided:   February 28, 2012


Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part, affirmed in part by unpublished per curiam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


Harold M. Vaught, HAROLD M. VAUGHT, ATTORNEY AT LAW, Norwalk,
California, for Appellant.      Joshua Clarke Hanks, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Stanley Smith pled guilty, pursuant to a written plea

agreement, to distribution of a quantity of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (2006).                     The district court

sentenced Smith to 137 months’ imprisonment.                          Smith appeals.

Counsel has filed a brief pursuant to Anders v. California, 386

U.S.    738    (1967),    questioning            whether    Smith’s    sentence       was

improper      because    the    district     court     erroneously      considered      a

seven-year-old         probation       violation       in    calculating       Smith’s

criminal history score and attributed to Smith an excessive drug

quantity.          Smith was notified of his right to file a pro se

supplemental brief but has not done so.                    The Government moves to

dismiss the appeal based on the appellate waiver provision in

Smith’s plea agreement.             We dismiss in part and affirm in part.

              We    consider    a    defendant’s      waiver    of    his    appellate

rights de novo.          United States v. Manigan, 592 F.3d 621, 626

(4th   Cir.    2010).      Where       the   Government      seeks    to    enforce   an

appeal waiver and there is no claim the United States breached

its    obligations      under    the    plea      agreement,   we     generally   will

enforce the waiver as to issues within its scope, if the record

establishes that the defendant’s waiver was both knowing and

intelligent.         United States v. Blick, 408 F.3d 162, 168-69 (4th

Cir. 2005).         Our independent review of the record leads us to

conclude that Smith voluntarily and knowingly waived his right

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to   appeal    any     sentence       within       the    advisory         Guidelines    range

established       by   the     district       court      prior    to    any    departure      or

variance,     except     for     a    properly        preserved         challenge     to     the

district court’s calculation of the applicable Guidelines range.

We further conclude that the sentencing issues raised in Smith’s

brief fall squarely within the scope of the appellate waiver and

observe    that      Smith     has    not     preserved        any     challenges     to     the

court’s Guidelines range calculation.                      Accordingly, we grant the

Government’s       motion      to    dismiss       in     part    and      dismiss    Smith’s

appeal of his sentence.

              Although the waiver provision in the plea agreement

precludes our review of Smith’s sentence, the waiver does not

preclude our review of any errors in Smith’s conviction that may

be revealed by our review pursuant to Anders.                                 In accordance

with Anders, we have reviewed the record in this case and have

found no meritorious issues for appeal.                          We therefore deny in

part   the    Government’s           motion    to     dismiss        and    affirm    Smith’s

conviction.

              This     court    requires       that       counsel       inform   Smith,       in

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

United States for further review.                         If Smith 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

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state that a copy thereof was served on Smith.              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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