                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4793


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

OSMAN WHITE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00141-MOC-1; 3:12-cr-00013-MOC-1)


Submitted:   July 17, 2014                 Decided:   July 31, 2014


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


Dismissed in part; affirmed in part by unpublished per curiam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


Anthony G. Scheer, RAWLS, SCHEER, FOSTER, MINGO & CULP, PLLC,
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Unpublished opinions are not binding precedent in this circuit.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:

                Osman White appeals the 140-month sentence imposed by

the district court following his guilty plea to distribution and

possession with intent to distribute cocaine and marijuana, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012), and Hobbs

Act    robbery,        in     violation    of      18    U.S.C.    § 1951     (2012).     On

appeal,     White           asserts    that        the    district      court    committed

procedural        error       in    its   application        of     a   U.S.    Sentencing

Guidelines Manual (“USSG”) § 5K1.1 (2012) downward departure and

that the Government breached the plea agreement by seeking a

vulnerable victim sentencing enhancement. ∗                        The Government moves

to    dismiss     White’s         downward    departure      claim      pursuant     to   the

waiver of appellate rights contained in his plea agreement and

urges this court to affirm White’s conviction and sentence with

regard     to    all    other      issues.         Because   whether     the    Government

breached        the    plea    agreement      is    intrinsic      to   the    analysis   of

whether the waiver of appellate rights is valid, we consider

both of White’s appellate issues together.

                Where       the    government       seeks    to     enforce     an   appeal

waiver, we will enforce the waiver if the defendant’s waiver was

       ∗
       White’s counsel states that he is                          submitting the second
issue pursuant to Anders v. California,                           386 U.S. 738 (1967).
However, because he seeks review on the                            merits of the first
issue, we have not construed the brief                            as filed pursuant to
Anders.



                                                2
knowing and intelligent and the issues raised on appeal fall

within the scope of the agreement.                   United States v. Blick, 408

F.3d   162,      168-69   (4th    Cir.    2005).         We   review       de    novo   the

validity of an appellate waiver.                 United States v. Manigan, 592

F.3d 621, 626 (4th Cir. 2010).                 “Generally, if a district court

questions a defendant regarding the waiver of appellate rights

during    the     [Fed.   R.     Crim.    P.]    11    colloquy      and    the    record

indicates that the defendant understood the full significance of

the waiver, the waiver is valid.”                    United States v. Thornsbury,

670 F.3d 532, 537 (4th Cir. 2012).

              We have reviewed the Fed. R. Crim. P. 11 plea colloquy

and conclude that White knowingly and voluntarily waived his

right to appeal whatever sentence the district court imposed.

Further,        White’s   claim    that        the    district      court       improperly

applied     a     downward     departure       pursuant       to   USSG     § 5K1.1,      a

question of procedural reasonableness, is within the scope of

his waiver.         Lastly, we conclude that the Government did not

breach     the     plea   agreement       by     seeking      a    vulnerable      victim

sentencing enhancement because the plea agreement forbade the

Government only from seeking an upward departure or variance,

and it permitted the Government to seek additional enhancements

other than those enumerated in the agreement.                          Therefore, we

conclude that White’s appeal of this issue is barred by the

waiver of his appellate rights.

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           Accordingly,   we     grant   the   Government’s   motion    to

dismiss as to White’s downward departure claim and affirm the

district   court’s   judgment.      We   dispense   with   oral   argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                     DISMISSED IN PART;
                                                       AFFIRMED IN PART




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