UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 94-5911

WILLIAM GEORGE PAYNE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(CR-94-173-PJM)

Submitted: November 28, 1995

Decided: August 13, 1996

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
CHAPMAN, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, Balti-
more, Maryland, for Appellant. Lynne A. Battaglia, United States
Attorney, Robert M. Thomas, Jr., Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

William George Payne, by counsel, appeals his conviction alleging
that the district court erred when it added two points in calculating his
criminal history category on the basis that he committed the instant
offense while on probation or supervised release. We affirm.

Payne, a citizen of Jamaica, has been arrested on numerous occa-
sions for drug offenses. Typically after each conviction, he is
deported from the United States. In December 1992, he was convicted
of state drug charges and was charged federally for his illegal re-entry
into the United States. He received a ten-month sentence for the ille-
gal re-entry offense and three years supervised release. After complet-
ing service on his federal sentence, he was again deported.

Two months later, following an investigation by immigration offi-
cials, Payne was arrested in the United States. During a search inci-
dent to the arrest, the arresting officers recovered twelve grams of
crack cocaine from Payne's personal possession. Payne pled guilty to
a superseding criminal information which charged him with posses-
sion of crack cocaine, in violation of 21 U.S.C.§ 844(a) (1988). As
a part of his plea agreement, Payne waived his right to appeal the
imposed sentence, except for any sentence that resulted from a depar-
ture from the sentencing guidelines or for any sentence that exceeded
the statutory maximum.

During sentencing, Payne's chief objections to the presentence
report ("PSR") were that he was not on state probation or federal
supervised release when he committed the instant offense, and as a
result, the district court should not have increased his total criminal
history points by two pursuant to United States Sentencing Commis-
sion, Guidelines Manual, § 4A1.1(d) (Nov. 1994). Payne's counsel
argued that Payne could not have been on state probation or federal

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supervised release when the instant offense occurred because those
periods terminated when he was deported. According to Payne, as a
result of his deportation, the United States could no longer exercise
any jurisdiction over him. The district court concluded that Payne was
either on inactive supervised release or probation when he committed
the instant offense and that the two-point assessment was proper.

Payne's counsel filed a brief in this court pursuant to Anders v.
California, 386 U.S. 738 (1967), raising only this issue of whether the
district court properly calculated Payne's criminal history category.
But counsel concedes that Payne may have waived his right to assert
this issue on appeal because, according to the terms of his plea agree-
ment, Payne waived all rights to appeal his sentence, notwithstanding
a few limited exceptions.

We find that according to the terms of his plea agreement, Payne
knowingly and expressly waived his rights to appeal this sentence. A
defendant who executes a general waiver of appellate rights retains
the right to seek appellate review of a sentence imposed in excess of
the statutory maximum or based on a constitutionally impermissible
factor such as race. United States v. Marin, 961 F.2d 493, 496 (4th
Cir. 1992). Payne makes no such challenge here.

In accordance with Anders, this court has thoroughly examined the
entire record for any potentially meritorious issues for appeal and has
found none. We therefore affirm Payne's conviction and sentence and
deny counsel's motion to withdraw. 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. Counsel's motion must state that a copy thereof
was served on the client. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would aid the decisional process.

AFFIRMED

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