                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4919


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES EDWARD MCCULLOUGH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:10-cr-00223-F-1)


Submitted:   June 28, 2012                 Decided:   August 17, 2012


Before KING, SHEDD, and AGEE, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James Edward McCullough pled guilty, in two separate

proceedings,       to     two       counts    of     possessing            with    intent      to

distribute    marijuana,            in    violation       of   21     U.S.C.      § 841(a)(1)

(2006).      McCullough was sentenced to consecutive sentences of

fifteen    months       and    120       months,    for    a   total       of     135    months.

Counsel     has    filed        a    brief    in     accordance            with    Anders      v.

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

non-frivolous issues for appeal, but questioning the sufficiency

of the evidence supporting the quantity of drugs attributed to

McCullough    for       sentencing        purposes    and      whether          this    judicial

fact     finding       violated       McCullough’s         Sixth      Amendment          rights.

McCullough has filed a pro se supplemental brief in which he

questions whether his prior convictions properly supported the

application       of    enhanced         statutory     sentences           on     one    of   the

counts.     The Government has moved to dismiss McCullough’s appeal

of his sentence based on the terms of the waiver of appellate

rights    contained       in        McCullough’s      plea         agreement.           For   the

following reasons, we grant the Government’s motion in part,

dismiss in part, and affirm in part.

            Pursuant to a plea agreement, a defendant may waive

his    appellate       rights       under    18    U.S.C.      §    3742    (2006).      United

States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                                   A valid

waiver will preclude appeal of a given issue if the issue is

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within the scope of the waiver.                    United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).                    The validity of an appellate

waiver is a question of law that we review de novo, and “depends

on whether the defendant knowingly and intelligently agreed to

waive the right to appeal.” Id. at 169.                        This determination,

often made based on the sufficiency of the plea colloquy and

whether the district court questioned the defendant about the

appeal waiver, ultimately turns on an evaluation of the totality

of the circumstances.        Id.

             Here, the district court substantially complied with

Fed. R. Crim. P. 11 when accepting McCullough’s second plea,

ensuring     that    McCullough         understood         the      rights   he     was

relinquishing by pleading guilty and the sentence he faced, that

McCullough committed the offense to which he was pleading, and

that McCullough was aware of the limits his plea would place on

his appellate rights.         Given no indication to the contrary, we

find      that   McCullough’s       appellate            waiver     is    valid     and

enforceable.

             However,   as   counsel         made    clear     during    McCullough’s

second Rule 11 hearing, McCullough pled “straight up” to Count

Two of the original indictment in order to avoid the application

of   an   enhanced   sentence      to   that       conviction,      18   U.S.C.   § 851

(2006).      Further, the parties and the district court did not

consider     McCullough’s    plea       to       Count   Two   to   be   governed    by

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McCullough’s second plea agreement.                       Therefore, we find that the

appeal waiver only precludes McCullough’s appeal of his within-

Guidelines sentence on Count Four of the superseding indictment,

see United States v. Jordan, 509 F.3d 191, 195-96 (4th Cir.

2007),    and we grant the Government’s motion as to that sentence

only.      Notwithstanding this result, the substantive challenges

McCullough        raises    to   his    sentence            on    Count    Two    provide     no

meritorious ground for appeal.

             First,        counsel     questions            whether       the    evidence     at

sentencing    was     sufficiently           reliable        to    support       the   district

court’s findings regarding the quantity of drugs attributable to

McCullough for sentencing purposes.                       Generally, a district court

must find facts relevant to sentencing by a preponderance of the

evidence,    and     we     review     such       findings        for   clear     error.     See

United States v. Alvarado Perez, 609 F.3d 609, 612, 614 (4th

Cir.     2010).      Further,     although            the    evidence      relied      on    must

possess     sufficient       indicia         of       reliability,        we    afford      great

deference to the credibility determinations of district courts

during sentencing, United States v. McKenzie-Gude, 671 F.3d 452,

463 (4th Cir. 2011).             We find no clear error in the district

court’s findings here.

             Nor did the district court violate McCullough’s Sixth

Amendment rights when it imposed sentence based on facts neither

admitted     by     McCullough         nor        found      by    a    jury.          We   have

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consistently rejected such a claim and are without authority to

overrule a prior panel of this court.               United States v. Rivers,

595 F.3d 558, 564 n.3 (4th Cir. 2010); United States v. Grubbs,

585 F.3d 793, 799 (4th Cir. 2009).

          Moreover,       because      the    district    court    substantially

complied with Rule 11 when accepting both of McCullough’s guilty

pleas, we conclude that they were knowing and voluntary, and,

consequently, final and binding.              See United States v. Lambey,

974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).                McCullough’s pro

se challenge to the validity of his plea based on our decision

in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en

banc), which issued after his second Rule 11 hearing, fails to

convince us otherwise.

          In     accordance       with    Anders,    we    have    reviewed   the

record, mindful of the scope of the appellate waiver, and have

found no meritorious issues for appeal.                   We therefore dismiss

the appeal in part and affirm in part.              This court requires that

counsel inform McCullough, in writing, of his right to petition

the Supreme Court of the United States for further review.                    If

McCullough     requests    that    a     petition   be    filed,    but   counsel

believes that such a petition would be frivolous, counsel may

move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on

McCullough.     We dispense with oral argument because the facts

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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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