                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4969


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

AGUSTIN PARDO MACIAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00233-RJC-4)


Submitted:   April 19, 2010                 Decided:   May 14, 2010


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Agustin     Pardo      Macias         pleaded    guilty,      pursuant       to    a

plea agreement, to one count of conspiracy to distribute and

possess     with      intent     to       distribute         heroin    and        cocaine,       in

violation       of    21   U.S.C.     §§    841(a)(1),         846    (2006).        The     plea

agreement       included     a   waiver         of    Macias’    right       to    appeal     his

conviction       or    sentence,          except      for    claims     of     prosecutorial

misconduct or ineffective assistance of counsel.                                  The district

court sentenced Macias to seventy months of imprisonment, and he

timely appealed.

               On appeal, Macias contends that the Government’s late

filing    of    objections       to       the    draft       presentence       investigation

report    (PSR)        breached       the       plea     agreement       and       constituted

prosecutorial         misconduct.           He     argues      that   the    appeal     waiver

should not apply to bar his assertions of sentencing error.                                  The

Government argues that there was no prosecutorial misconduct and

the appeal waiver should be enforced.

               This court reviews the validity of an appeal waiver de

novo, United States v. Brown, 232 F.3d 399, 402-03 (4th Cir.

2000),    and    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).     A waiver is valid if the defendant’s agreement to the



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waiver was knowing and voluntary.                    United States v. Marin, 961

F.2d 493, 496 (4th Cir. 1992); United States v. Wessells, 936

F.2d 165, 167 (4th Cir. 1991).

            To     determine         whether     a      waiver       is     knowing      and

intelligent,       this    court        examines        “the     totality         of     the

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, the

waiver is valid.        Wessells, 936 F.2d at 167-68.

            In this case, Macias does not assert that his waiver

was not voluntary, and our review of the record leads us to

conclude that his waiver was knowing and voluntary.                              Moreover,

the issues he seeks to raise on appeal are within the scope of

the waiver.      We also conclude that the Government’s late filing

of objections to the PSR neither breached the plea agreement nor

amounted to prosecutorial misconduct.                       Thus, the exceptions to

Macias’ waiver of his right to appeal do not apply.

            Accordingly, we dismiss the appeal.                      We dispense with

oral    argument     because     the    facts         and    legal    contentions        are



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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                               DISMISSED




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