                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-5271


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JEROME RICO EVANS, a/k/a Wank,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:10-cr-00013-F-1)


Submitted:   August 8, 2011                 Decided:   September 7, 2011


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


Dismissed in part; affirmed in part by unpublished per curiam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


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:

            Jerome      Rico    Evans    pled    guilty        pursuant    to     a    plea

agreement to possession with intent to distribute heroin and

cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006), and was

sentenced to 170 months in prison.                Counsel has filed an appeal

pursuant to Anders v. California, 386 U.S. 738 (1967).                            In the

Anders    brief,      counsel    states    that       there    are   no    meritorious

grounds for appeal, but nonetheless asserts that the district

court    imposed   an     unreasonable        sentence    because     it    failed       to

provide an individualized assessment of Evans’ situation before

imposing sentence.          Evans filed a pro se supplemental brief,

asserting that the: (i) Fair Sentencing Act, Pub. L. No. 111-

220, 124 Stat. 2372 (“FSA”) should retroactively apply to his

sentence; (ii) appellate waiver in his plea agreement does not

bar an FSA-based challenge to his sentence, and (iii) district

court erred when it classified him as a career offender.                                The

Government moves to dismiss the appeal, asserting that Evans

waived his right to appeal his sentence in his plea agreement.

            A   defendant       may   waive     the    right    to   appeal     if     that

waiver    is    knowing    and    intelligent.           See     United     States       v.

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).                       Our independent

review    of    the     record    supports       the     conclusion        that       Evans

voluntarily      and    knowingly       waived    his     right      to    appeal      his



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sentence.        Thus,    we    conclude        that    the     waiver       is    valid     and

enforceable.

            However,      even      a    valid      waiver      does     not       waive     all

appellate claims.         Specifically, a valid appeal waiver does not

preclude a challenge to a sentence on the ground that it exceeds

the     statutory    maximum        or    is       based   on      a    constitutionally

impermissible factor such as race, arises from the denial of a

motion to withdraw a guilty plea based on ineffective assistance

of counsel, or relates to claims concerning a violation of the

Sixth Amendment right to counsel in proceedings following the

guilty plea.        See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th

Cir.    1993).      Moreover,       the       appellate    waiver       in     Evans’       plea

agreement did not waive any claims Evans may have pertaining to

his     conviction       or    to       his    sentence       on       the        grounds     of

prosecutorial misconduct or ineffective assistance of counsel.

Evans    raises     no   claims     that       fall    outside     the       scope    of     his

appellate waiver.             Thus, we grant the Government’s motion to

dismiss in part and dismiss the claims raised by Evans in his

Anders and pro se supplemental briefs.

            Although we are charged under Anders with reviewing

the record for unwaived error, we have reviewed the record in

this case and have found no unwaived and meritorious issues for

appeal.     We therefore dismiss the appeal in part and affirm in

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part.      This    court   requires     that    counsel   inform   Evans,    in

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

United States for further review.               If Evans requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move this court for leave

to withdraw from representation.               Counsel’s motion must state

that a copy thereof was served on Evans.              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 in the decisional process.

                                                          DISMISSED IN PART;
                                                            AFFIRMED IN PART




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