                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4727


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHARLES EDGAR WARE, a/k/a Edgar Charles Ware,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.     John Preston Bailey,
District Judge. (2:14-cr-00015-JPB-JSK-1)


Argued:   October 28, 2015              Decided:   November 25, 2015


Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


ARGUED: Katy J. Cimino, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Clarksburg, West Virginia, for Appellant.    Stephen L. Vogrin,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee.   ON BRIEF:  Kristen M. Leddy, Research & Writing
Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Tara N. Tighe, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Charles        Edgar      Ware      pleaded     guilty      to     one       count   of

possession      of    child       pornography       in    violation         of   18    U.S.C.

§ 2252A(a)(5)(B) & (b)(2).                 At sentencing, the district court

determined that Ware had a total offense level of 29 and a

criminal history category of II, which would have yielded an

advisory guideline prison term range of 97 to 121 months.                               After

consideration of the 18 U.S.C. § 3553(a) factors, the district

court imposed an upward variance, resulting in a sentence of 180

months,   or    almost       50    percent    above      the     top   of    the      advisory

guidelines range.            Despite the existence of an appellate waiver

in the plea agreement, Ware attempts to appeal his sentence.                               We

enforce the appellate waiver and dismiss this appeal.

      Ware’s guilty plea was made pursuant to a plea agreement,

memorialized         by   the      parties    in    a     six-page       document.          In

paragraph eleven of the agreement, Ware consented to waive his

right to appeal his sentence in a post-conviction proceeding,

unless    the   district          court   determined       that    his      total     offense

level was 31 or greater.               At sentencing, the district court made

it   unequivocally        clear     that     Ware’s      total    offense        level—after

adjustments for acceptance of responsibility—was 29.

      We review the application of an appeal waiver within a plea

agreement de novo.              United States v. Blick, 408 F.3d 162, 168

(4th Cir. 2005).          It is uncontested that a defendant may waive

                                              2
the    right    to    an    appeal       as    part   of     a   valid    plea     agreement.

United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                                Plea

agreements       are       governed       by    contract         law   and    we    use     the

agreement’s plain language as taken in its ordinary sense to

determine the bargain between the parties.                               United States v.

Jordan, 509 F.3d 191, 195 (4th Cir. 2007).                             We will generally

enforce such a waiver if the waiver is valid and the issue being

appealed is covered by the waiver.                        Blick, 408 F.3d at 168.              We

may “decline[] to enforce a valid appeal waiver only where the

sentencing court [has] violated a fundamental constitutional or

statutory      right       that    was    firmly      established        at   the    time      of

sentencing,” United States v. Archie, 771 F.3d 217, 223 (4th

Cir.    2014),       or    if    enforcing      the       waiver   “would     result      in    a

miscarriage of justice,” United States v. Johnson, 410 F.3d 137,

151 (4th Cir. 2005) (internal quotation omitted).

       Ware    does        not    challenge         the    validity      of   the    waiver.

Rather, Ware contends that the district court’s sentence exceeds

the scope of the appeal waiver.                  We disagree.

       The district court found that the total offense level was

29 and noted that, since the statutory mandatory minimum was 120

months, “the guidelines call for incarceration of 120 to 121

months.”       JA 52.       The district court then expressly stated that

it was imposing a sentence “above the guideline range to protect

the public, especially children, from further crime.”                                  JA 68

                                                3
(emphasis added).         The district court went to great lengths to

explain that Ware’s particular criminal history, victim impact

statements, and other material it reviewed from the presentence

report justified an upward variance from the guidelines range.

      In sum, because Ware knowingly and voluntarily entered into

the   plea    agreement    containing    a   waiver   of   appellate      rights,

because this appeal falls within the scope of the waiver, and

because      enforcement    of   the    waiver   would     not   result    in   a

miscarriage of justice, we conclude that his appellate waiver is

enforceable.      We therefore enforce the waiver and dismiss the

appeal.

                                                                     DISMISSED




                                        4
