UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4951

RONNIE LEWIS GIBSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-97-42-F)

Argued: December 4, 1998

Decided: January 11, 1999

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
HERLONG, United States District Judge for the District of
South Carolina, sitting by designation.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Robert Lonnie Cooper, COOPER, DAVIS & COOPER,
Fayetteville, North Carolina, for Appellant. Thomas B. Murphy,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Janice McKenzie Cole, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Ronnie Lewis Gibson pleaded guilty to conspiracy to make, utter,
and possess a forged security with the intent to deceive another per-
son or organization in violation of 18 U.S.C.A.§ 513(a) (West Supp.
1998) and was sentenced to 51 months imprisonment. On appeal,
Gibson argues that the district court erred in departing upward from
criminal history category V to criminal history category VI. Finding
that Gibson knowingly waived his right to appeal his sentence in his
plea agreement, we dismiss his appeal.

I.

While on probation for forgery and uttering, Ronnie Lewis Gibson
defrauded numerous victims of over $114,000. In particular, Gibson
either stole or forged business checks, and then cashed those checks
using false identification cards that he produced on an official drivers
license camera stolen from the North Carolina Department of Motor
Vehicles. In addition, Gibson opened fraudulent business checking
accounts, passed bad checks drawn from those accounts, and recruited
others to cash the fraudulent or stolen checks while using fictitious
identification cards that he provided.

On March 18, 1997, Gibson was indicted by a federal grand jury
on one count of conspiracy to make, utter, and possess a forged secur-
ity with the intent to deceive another person or organization in viola-
tion of 18 U.S.C.A. § 513(a) (West Supp. 1998). On July 7, 1997,
Gibson pleaded guilty to the sole count of the indictment.* During the
Rule 11 hearing, the district court determined that Gibson was compe-
tent to plead guilty. The district court also determined that Gibson had
received a copy of the indictment, discussed it with his attorney,
_________________________________________________________________
*Pursuant to his plea agreement, Gibson waived his right to appeal.

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understood his right to a jury trial and the consequences of pleading
guilty, and that he was satisfied with the performance of his attorney.
Of particular importance here, the district court also specifically
advised Gibson that he had waived "all right to appeal whatever sen-
tence is imposed." (Hearing Transcript (H.T.) at 17.)

On November 10, 1997, Gibson was sentenced pursuant to the
fraud guideline. See U.S. Sentencing Guidelines Manual § 2F1.1
(1997). Due to the amount of money involved, Gibson's base offense
level was set at twelve. See U.S.S.G. § 2F1.1(a) & (b)(1)(G). Because
the offense involved more than minimal planning, Gibson's base
offense level was increased an additional two levels. See U.S.S.G.
§ 2F1.1(b)(2)(A) & (B). In addition, because Gibson was an organizer
and leader of a criminal conspiracy involving more than five partici-
pants, his base offense level was increased an additional four levels.
See U.S.S.G. § 3B1.1(a). Finally, because Gibson accepted responsi-
bility for the instant offense, his base offense level was reduced by
three levels. See U.S.S.G. § 3E1.1. With an adjusted offense level of
15 and a criminal history category of V, Gibson's guideline range was
37-46 months. See U.S.S.G. Ch.5, Pt.A.

Believing that Gibson's criminal history category did not ade-
quately reflect either the seriousness of Gibson's past criminal history
or the likelihood that he would commit further crimes, the district
court determined that an upward departure from criminal history cate-
gory V to criminal history category VI was warranted. See U.S.S.G.
§ 4A1.3. With an adjusted offense level of 15 and a criminal history
category of VI, Gibson's guideline range was 41-51 months. See
U.S.S.G. Ch.5, Pt.A. The district court then sentenced Gibson to 51
months imprisonment. After sentencing, the district court advised
Gibson of his appellate rights. This appeal followed.

II.

On appeal, Gibson argues that the district court erred in departing
upward from criminal history category V to criminal history category
VI. Although Gibson concedes that he waived his right to appeal his
sentence in his plea agreement, he contends, based on a decision of
the Ninth Circuit, see United States v. Buchanan , 59 F.3d 914 (9th
Cir. 1995), and a dissent in an unpublished opinion from this Court,

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see United States v. One Male Juvenile, 117 F.3d 1415 (4th Cir. 1997)
(unpublished), cert. denied, 118 S. Ct. 1191 (1998), that the district
court's statement during the sentencing hearing that he could appeal
his sentence overrides his waiver of his right to appeal in the plea
agreement. Specifically, Gibson argues that where there is a conflict
between what the district court orally pronounces in open court and
what is written in a plea agreement, the oral pronouncement creates
a reasonable expectation and, therefore, is controlling. For the reasons
that follow, we disagree with Gibson's argument.

It is well established that a waiver of a criminal defendant's right
to appeal contained in a valid plea agreement "is enforceable against
the defendant so long as it is `the result of a knowing and intelligent
decision to forgo the right to appeal.'" United States v. Attar, 38 F.3d
727, 731 (4th Cir. 1994) (quoting United States v. Wessells, 936 F.2d
165, 167 (4th Cir. 1991)). In determining whether a defendant's
waiver is "knowing and intelligent," we consider "the particular facts
and circumstances surrounding [the] case, including the background,
experience and conduct of the accused." United States v. Davis, 954
F.2d 182, 186 (4th Cir. 1992) (internal quotation marks omitted).

Considering the particular facts and circumstances of this case, we
conclude that Gibson's waiver of his right to appeal his sentence, as
contained in the plea agreement, was knowing and intelligent. During
the Rule 11 colloquy, the district court specifically questioned Gibson
about his decision to waive his right to appeal. Gibson stated that he
understood the consequences of the plea agreement, and he reaffirmed
his decision to plead guilty. Gibson was represented by counsel dur-
ing the hearing, and there is no evidence that he was incapable of
understanding the consequences of his decision.

Gibson argues, however, that the district court's subsequent oral
pronouncement during sentencing nullified the earlier waiver, such
that it was no longer knowing and intelligent. At sentencing, the dis-
trict court advised Gibson of his appellate rights as follows:

          You can appeal your conviction, Mr. Gibson, if you believe
          that your guilty plea was somehow unlawful or involuntary,
          or if there is some other fundamental defect in the proceed-
          ings that was not waived by your guilty plea. You also have

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          a statutory right to appeal your sentence under certain cir-
          cumstances, particularly if you think the sentence is contrary
          to law.

          However, a defendant may waive those rights as part of a
          plea agreement, and you have entered into a plea agreement
          which waives some or all of your rights to appeal the sen-
          tence itself. Such waivers are generally enforceable, but if
          you believe the waiver is unenforceable, you can present
          that theory to the appellate court.

(J.A. at 23-24.) At no point during sentencing did the district court
inform Gibson that he could appeal as a right. Rather, the district
court simply informed Gibson that he could appeal if his guilty plea
was involuntary or if his sentence was contrary to law. Although a
general waiver of the right to appeal is valid, it is well established that
such a waiver does not preclude a defendant from arguing on appeal
that his sentence was contrary to law, e.g., imposed in excess of the
maximum penalty provided by statute, see United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992), or was involuntary, see United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Thus, the district
court's statement concerning Gibson's rights to appeal was simply a
correct statement of the law. In fact, the district court explicitly
informed Gibson that he had entered into a plea agreement that
waived his right to appeal, and that such waivers are generally
enforceable. Indeed, a general waiver precludes the very type of claim
raised by Gibson in his appeal: that the district court improperly
applied the sentencing guidelines when imposing sentence. See Attar,
38 F.3d at 732. Because Gibson knowingly and intelligently waived
his right to appeal, the waiver must be enforced.

In any event, even had the district court erroneously stated during
sentencing that Gibson had a right to appeal his sentence, such a state-
ment would not nullify the valid waiver contained in his plea agree-
ment. As support for his theory, Gibson relies principally on the Ninth
Circuit's decision in Buchanan, 59 F.3d 914 (9th Cir. 1995), and on
the dissent in One Male Juvenile, 117 F.3d at 1415. In Buchanan, the
defendant entered into a plea agreement in which he waived his right
to appeal his sentence. See id. at 916. He subsequently confirmed that
he understood both the plea agreement and its consequences during

                     5
the Rule 11 hearing. See id. When the defendant later appeared for
sentencing, however, the district court erroneously told the defendant
that he "could appeal the sentencing findings." Id. On appeal, the
Ninth Circuit concluded that the defendant's waiver of his right to
appeal, albeit entered into knowingly and intelligently, was unen-
forceable because of the subsequent erroneous statements by the dis-
trict court to the effect that the defendant had a right to appeal. See
id. at 917-18.

Over a dissent, this Court recently rejected the Ninth Circuit's anal-
ysis:

          We are not persuaded by the holding in Buchanan that a
          waiver of a right to appeal contained in a plea agreement
          that has been entered into knowingly and intelligently may
          be held unenforceable because of subsequent erroneous and
          apparently inadvertent statements by the district court to the
          effect that the defendant has a right to appeal. Once a defen-
          dant has knowingly and intelligently waived his right to
          appeal and that waiver is confirmed during a Rule 11 hear-
          ing, the requirements for an effective waiver of appeal have
          been satisfied, and the waiver should be enforced. See Attar,
          38 F.3d at 731; Marin, 961 F.2d at 496. To hold otherwise
          ignores the purpose and implication of a Rule 11 hearing,
          which is to establish, on the record, the knowing and intelli-
          gent nature of each guilty plea. See United States v. Taylor,
          984 F.2d 618, 621 (4th Cir. 1993). Therefore, we disagree
          with the Ninth Circuit and hold that once an appeal waiver
          is established to be knowing and intelligent pursuant to Rule
          11, the waiver may not be held unenforceable because of a
          district court's erroneous statements at a subsequent pro-
          ceeding that the defendant has a right to appeal.

One Male Juvenile, 117 F.3d at 1415 (unpublished). Here, Gibson's
appeal waiver was knowing and intelligent. Moreover, that fact was
confirmed during a Rule 11 hearing. Accordingly, the appeal waiver
should be enforced even if the district court stated at sentencing that
Gibson had a right to appeal his sentence.

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III.

For the foregoing reasons, we will not consider whether the district
court erred in departing upward from criminal history category V to
criminal history category VI and dismiss this appeal.

DISMISSED

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