                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4349


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

CHARLES NEWBY,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina at Raleigh.  James C. Fox, Senior
District Judge. (5:08-cr-00252-F-1)


Submitted:    January 25, 2010             Decided:   February 16, 2010


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Mark R. Sigmon, GRAEBE HANNA & WELBORN, PLLC, Raleigh, North
Carolina, for Appellant.   Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charles Newby seeks to appeal his conviction, after

pleading guilty pursuant to a written plea agreement, on one

count of conspiracy to distribute and possession with intent to

distribute 50 grams or more of crack cocaine, in violation of

21 U.S.C. § 846 (2006), and the resulting 172-month sentence.

On appeal, Newby claims his plea was not knowing because he

never    admitted    to    distribution       of    more    than    14.8        grams    of

cocaine base.

            The     Government     has    moved      to     dismiss       the    appeal,

asserting that it is barred by Newby’s appellate waiver in the

validly entered plea agreement.               Newby has responded that the

motion to dismiss should be denied based on the reasons asserted

in his opening brief.

            A   defendant    may    waive     the   right     to    appeal       if   that

waiver is knowing and intelligent and the issue on which the

defendant seeks to appeal is within the scope of the appeal

waiver.     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    Rule    11    of     the

Federal Rules of Criminal Procedure, 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

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(4th Cir. 1991).             The question of whether a defendant validly

waived his right to appeal is a question of law that we review

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

2005).

               Our review of the record leads us to conclude that

Newby knowingly and voluntarily waived the right to appeal any

sentence that was not above the advisory Sentencing Guidelines

range    and    any    issues      relating      to   the    establishment     of   the

Guidelines range.            The terms of plea agreement specified that

Newby was pleading guilty to Count One of the Indictment, which

was conspiracy to distribute an amount of 50 grams or more of

cocaine base.          Newby signed the plea agreement, stipulating to

the facts underlying his guilty plea.

               At the time he entered his plea, Newby was a fifty-six

year    old    man    with    an   eleventh      grade   education.      During     his

sentencing hearing, Newby stated that he had read and discussed

the charges against him, and the applicability of the sentencing

factors, including the sentencing guidelines, with his lawyer.

The district court reviewed the specific terms of Newby’s plea

agreement with him in open court.                  He stated that he understood

he was waiving his right to appeal his conviction, and his right

to   appeal     a    sentence      within   or   below      the   specified   advisory

guidelines range.            Newby specifically stated that he understood

that he was pleading guilty to conspiring with another person to

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intentionally distribute and possess with intent to distribute

50 grams or more of crack cocaine, and that he was, in fact,

guilty       of   that    particular    crime.      Newby    is    bound    by   his

statements        made   under   oath   during     his   plea     colloquy.      See

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). *

               The explicit terms of Newby’s plea agreement, as well

as his statements during his plea colloquy, fully support his

guilt of, and sentencing based upon, involvement with 50 grams

or more of cocaine base.           The sentencing issues Newby raises on

appeal fall within the scope of this waiver.                 We therefore grant

the Government's motion to dismiss the appeal.

               We dispense with oral argument because the facts and

legal       contentions    are   adequately      presented   in    the     materials




        *
       Newby cites to United States v. Brooks, 524 F.3d 549 (4th
Cir. 2008), and United States v. Collins, 415 F.3d 304 (4th Cir.
2005), to support his claim that he was sentenced upon an
incorrect amount of crack. Newby fails to acknowledge, however,
the distinguishing facts that he pled guilty to conspiracy of a
particular drug amount, i.e., 50 grams or more of crack, and was
sentenced based upon the attendant guidelines range for that
amount to which he pled.      As Newby admits on appeal, “the
Collins   principle  helps   determine  the   actual   crime  of
conviction, which sets the statutory minimums and maximums for
sentencing.” Here, the “actual crime of conviction” was set by
Newby’s plea of guilt to Count One, which was conspiracy to
distribute and possess with intent to distribute 50 grams or
more of crack.



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED




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