UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                   No. 96-4565
J. C. CLAYTON, a/k/a Frank James,
a/k/a Frank J. Allen,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-95-25)

Submitted: October 7, 1997

Decided: November 10, 1997

Before ERVIN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Scott E. Jarvis, SCOTT E. JARVIS & ASSOCIATES, Asheville,
North Carolina, for Appellant. William Mark Boyum, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

J. C. Clayton pled guilty to communicating a threat through the
United States mail, in violation of 18 U.S.C. § 876 (1994). The dis-
trict court sentenced Clayton to forty-two months imprisonment to be
followed by a three year term of supervised release. Clayton appeals,
challenging the manner in which his sentence was structured and the
length of the sentence imposed. Clayton's counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), present-
ing several issues, but stating that, in his view, there are no meritori-
ous issues for appeal. Clayton's counsel provided him with a copy of
the Anders brief and informed him of his right to file a pro se supple-
mental brief; he failed to do so. Based on the express waiver in Clay-
ton's plea agreement of his right to appeal, we dismiss.

A defendant may waive the right to appeal if that waiver is know-
ing and intelligent.1 In determining whether a waiver is knowing and
intelligent, we examine the background, experience, and conduct of
the defendant.2 Generally, we have found that if the district court fully
questions a defendant regarding waiver of his right to appeal during
the Fed. R. Crim. P. 11 colloquy, the waiver is both valid and
enforceable.3 However, waiver of appeal does not prohibit the appeal
of a sentence imposed in excess of the statutory maximum, a sentence
based on a constitutionally impermissible factor such as race,4 or pro-
_________________________________________________________________

1 See United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.
1995).
2 See Broughton-Jones, 71 F.3d at 1146.

3 See United States v. Wessells , 936 F.2d 165, 167-68 (4th Cir. 1991);
United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir. 1990).

4 United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

                     2
ceedings following entry of guilty plea conducted in violation of Sixth
Amendment right to counsel.5

Here, the transcript of Clayton's Rule 11 hearing reveals that he
understood the full significance of the waiver provision of his plea
agreement. After reviewing the written plea agreement with counsel,
Clayton signed the agreement, which provided that Clayton expressly
waived the right to contest his conviction or sentence in any direct
appeal or post-conviction proceeding, except to assert claims of inef-
fective assistance of counsel or prosecutorial misconduct. At the Rule
11 hearing, Clayton stated that he was satisfied with counsel's ser-
vices. The Government summarized the plea agreement, including the
waiver provision. Clayton acknowledged his signature on the agree-
ment and stated that he understood and agreed with the Government's
summary. When the magistrate judge specifically asked Clayton
about the waiver, he stated that he understood he was waiving his
right to appeal.6 On these facts, we find that Clayton's waiver was
knowingly and intelligently given.

Further, because Clayton's assertions do not support claims of inef-
fective assistance of counsel or prosecutorial misconduct and because,
in our review of the record, we have found no evidence that Clayton's
sentence was imposed in excess of the statutory maximum or based
on any impermissible factor, or that his Sixth Amendment right to
counsel was violated, we find that his waiver is both valid and
enforceable. Accordingly, we dismiss the appeal.

This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client 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. Coun-
sel's motion must state that a copy thereof was served on the client.
_________________________________________________________________

5 United States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994), cert.
denied, 514 U.S. 1107 (1995).
6 Clayton consented to the jurisdiction of the United States Magistrate
Judge pursuant to 28 U.S.C.A. § 636 (West 1994 & Supp. 1997), for the
purposes of accepting Clayton's guilty plea.

                    3
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

DISMISSED

                    4
