                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5061


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ABRAHAM F. MARSETT, a/k/a Abe, a/k/a A,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00098-JPB-DJJ-3)


Submitted:    May 29, 2009                  Decided:   July 2, 2009


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


James T. Kratovil, Aaron C. Amore, KRATOVIL & KRATOVIL,  PLLC,
Charles Town, West Virginia, for Appellant.      Thomas Oliver
Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Abraham F. Marsett timely appeals from the 120-month

sentence    imposed      following    his      guilty     plea,     pursuant     to    a

written plea agreement, to one count of distribution of cocaine

base, in violation of 18 U.S.C. § 841(a)(1) (2006).                         Marsett’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), asserting that there are no meritorious grounds for

appeal, but noting Marsett’s argument that the sentence is too

harsh    and     that    the     Guidelines     “failed        to    recognize        the

insignificance of his prior record.”                 Marsett has not filed a

pro se brief, though he was informed of his right to do so.                         The

Government filed a motion to dismiss the appeal on the basis of

Marsett’s      waiver    of    appellate    rights   in    the      plea    agreement.

Marsett’s      counsel    responded,       stating      that   he    “can    find     no

grounds to advance in opposition of the Motion to Dismiss the

Appeal.”

            We review a defendant’s waiver of appellate rights de

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

2005).      “A defendant may waive his right to appeal if that

waiver is the result of a knowing and intelligent decision to

forgo the right to appeal.”                United States v. Amaya-Portillo,

423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks and

citation omitted).            To determine whether the waiver is knowing

and intelligent, we look to “the totality of the circumstances,

                                           2
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    the   district     court       fully

questions     the    defendant       about      the    waiver   during    the   Rule     11

colloquy, the waiver is valid and enforceable.                      United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).                       We will enforce a

valid waiver so long as “the issue being appealed is within the

scope of the waiver.”          Blick, 408 F.3d at 168.

              Marsett does not challenge the validity of his waiver

of appellate rights; he simply argues his sentence is too harsh

given his criminal background.                   The waiver provision is clearly

set forth in the plea agreement.                      Both Marsett and his counsel

signed     each      page    of     the    agreement,         including     the        pages

containing the waiver provision.                      Moreover, during the Rule 11

colloquy, the magistrate judge specifically asked Marsett if he

understood he was waiving his rights to appeal his sentence.

Marsett responded affirmatively and his counsel also affirmed

that he thought Marsett fully understood his waiver of appellate

rights.       The    magistrate       judge       also    found   that    Marsett        was

competent      to    plead    guilty      and     made    the   plea     knowingly       and

voluntarily,        with     full    knowledge         and    understanding       of    the

consequences.          We therefore conclude that Marsett’s waiver of

                                             3
appellate    rights     is     valid.            Additionally,       because         Marsett’s

valid waiver clearly forecloses review of the sentencing issue

raised on appeal, we grant the Government’s motion to dismiss in

part and dismiss this portion of the appeal.

            The waiver provision, however, waives only Marsett’s

right to appeal his sentence.                    Although neither Marsett nor his

counsel assert any errors related to Marsett’s guilty plea or

conviction,      such     review         is    required     by     Anders      and    is     not

foreclosed by the appellate waiver.                     In accordance with Anders,

we have reviewed the record and have found no such potentially

meritorious      issues      for    appeal.           The   magistrate         judge    fully

complied with Rule 11 in accepting Marsett’s guilty plea and

ensured     it   was      knowing,            voluntary,     and     supported         by    an

independent factual basis.                    See Fed. R. Crim. P. 11(b)(1)-(3).

Therefore, we deny the Government’s motion to dismiss in part

and affirm Marsett’s conviction.

            Accordingly,           the    Government’s       motion       to    dismiss      is

granted in part and denied in part, Marsett’s appeal of his

sentence is dismissed, and his conviction is affirmed.                                      This

court requires that counsel inform Marsett, in writing, of his

right to petition the Supreme Court of the United States for

further review.         If Marsett requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

counsel   may    move     in   this           court   for   leave    to     withdraw        from

                                                 4
representation.      Counsel’s motion must state that a copy thereof

was served on Marsett.       We dispense with oral argument because

the facts and legal conclusions are adequately presented in the

materials   before    the   court   and   argument   would   not   aid   the

decisional process.

                                                       AFFIRMED IN PART;
                                                       DISMISSED IN PART




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