                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4982


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAWAAD NASH, a/k/a Wad,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:09-cr-00039-FDW-2)


Submitted:   September 27, 2011           Decided:   October 6, 2011


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


Dismissed by unpublished per curiam opinion.


Mark P. Foster, Jr., LAW OFFICES OF MARK FOSTER, P.C.,
Charlotte, North Carolina, for Appellant.    Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jawaad Nash pled guilty, pursuant to a written plea

agreement, to one count of conspiracy to distribute and possess

with intent to distribute one or more controlled substances, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and four counts

of conspiracy to commit robbery affecting interstate commerce,

in violation of 18 U.S.C. § 1951 (2006).           Nash was sentenced to

330 months’ imprisonment.

           On appeal, Nash’s counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting that, in

light of Nash’s appeal waiver in the plea agreement, there are

no meritorious issues for appeal, but raising for the court’s

consideration    the   following   two   issues:    (1)   whether   Nash’s

prior   North   Carolina   convictions   were   “felony   drug   offenses”

that raised Nash’s statutory sentence and (2) whether the Fair

Sentencing Act (“FSA”) should be applied to his case.                Nash

filed a pro se supplemental brief raising several sentencing

issues.   In a notice to this court, the Government stated that

it does not waive enforcement of Nash’s appeal waiver.              Nash’s

counsel subsequently filed a motion requesting this court apply

the holding in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc) and the sentencing provisions of the FSA.               He




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also moved for an order directing briefing on the merits of the

appeal.

            We review de novo the question of whether a defendant

has    waived    his    right       of    appeal       in     connection         with    a    plea

proceeding.       United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).     Where the government seeks to enforce an appeal waiver,

as in this case, and the appellant does not contend that the

government is in breach of the plea agreement, a waiver will be

enforced    if    the       record       shows       the    waiver    is    valid       and    the

challenged issue falls within the scope of the waiver.                               Id.

            A    defendant         may    waive       the    right    to    appeal      if    that

waiver is knowing and intelligent.                         United States v. Poindexter,

492 F.3d 263, 270 (4th Cir. 2007).                          Generally, if the district

court fully questions a defendant regarding the waiver of his

right to appeal during the plea colloquy performed in accordance

with    Fed.     R.    Crim.       P.    11,     the       waiver    is    both    valid      and

enforceable.          United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 (4th

Cir. 1991).

            Our review of the record leads us to conclude that

Nash’s    waiver       of    his     right       to    appeal       his    convictions        and

sentence    was       knowing      and    intelligent.               In    the    signed      plea

agreement, Nash agreed to “waive[] all such rights to contest



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the conviction except for:              (1) claims of ineffective assistance

of counsel or (2) prosecutorial misconduct.”                     (Joint Appendix at

68).      In addition, he acknowledged his right under 18 U.S.C.

§ 3742 to appeal his sentence and “waive[d] all rights conferred

by [Section 3742] or otherwise to appeal whatever sentence is

imposed    with    the     two    exceptions     set     forth    above.”      (Id.).

During    the    Rule    11     hearing,   the   appeal    waiver      provision    was

summarized and Nash acknowledged under oath that he was waiving

his right to appeal his convictions and sentence.                       By virtue of

the    appeal    waiver,      Nash   has   waived      review    of   the   sentencing

issues counsel raises in the Anders brief and the issues Nash

raises in his pro se supplemental brief.

            In accordance with Anders, we have reviewed the entire

record and have found no unwaived and potentially meritorious

issues for review.            Thus, based on the appeal waiver, we dismiss

the appeal.       We deny Nash’s motion to apply Simmons and the FSA

and to direct that a merits brief be filed by the parties.

This court requires that counsel inform Nash in writing of his

right to petition the Supreme Court of the United States for

further review.         If Nash 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.         Counsel’s motion must state that a copy thereof



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was served on Nash.          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   the

decisional process.

                                                                     DISMISSED




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