                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4892


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ANDRE TURNER PRIMUS,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.     Gina M. Groh,
District Judge. (3:12-cr-00024-GMG-DJJ-1)


Submitted:   May 17, 2013                  Decided:   May 30, 2013


Before DAVIS, WYNN, and FLOYD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
Andrew R. Cogar, Assistant United States Attorney, Clarksburg,
West Virginia; Thomas Oliver Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Andre Turner Primus pled guilty, pursuant to a written

plea    agreement,      to    possession          with      intent    to    distribute        4.2

grams    of   cocaine        base,    in     violation          of   21    U.S.C.     § 841(a)

(2006).       The    district        court    sentenced         Primus     to   188   months’

imprisonment, to be served consecutively to any prior state or

federal sentence.          Primus appeals.

              On appeal, Primus’ counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal but questioning whether an

information        filed     pursuant        to       21    U.S.C.    § 851     (2006)      was

adequate      to    support     the     district           court’s    application        of    a

statutory sentencing enhancement.                          Primus was notified of his

right to file a pro se supplemental brief but has not done so.

The Government has moved to dismiss the appeal based on the

appellate      waiver      provision         in       Primus’    plea      agreement.         We

dismiss in part and affirm in part.

              We review the validity of an appeal waiver de novo.

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010).

Where the government seeks to enforce an appeal waiver and did

not breach its obligations under the plea agreement, we will

enforce    the      waiver     if    the     record         establishes      that     (1)   the

defendant knowingly and intelligently agreed to waive his right

to appeal, and (2) the issues raised on appeal fall within the

                                                  2
scope of the waiver.                    United States v. Blick, 408 F.3d 162,

168-69 (4th Cir. 2005).

                  To determine whether a defendant has entered an appeal

waiver knowingly and intelligently, we must examine the totality

of    the     circumstances,            including        the       defendant’s    experience,

conduct,          educational       background,              and    familiarity     with     the

agreement’s terms.            United States v. General, 278 F.3d 389, 400

(4th       Cir.    2002).         “An    appeal         waiver      ‘is   not    knowingly    or

voluntarily made if the district court fails to specifically

question the defendant concerning the waiver provision of the

plea       agreement    during          the   Rule       11     colloquy    and    the   record

indicates that the defendant did not otherwise understand the

full significance of the waiver.’”                             United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005) (quoting United States v.

Marin, 961 F.2d 493, 496 (4th Cir. 1992)).

                  Our review of the record indicates that Primus’ waiver

is valid and enforceable as to issues within its scope.                                   During

the    plea       hearing,   the        magistrate           judge 1   specifically      advised

Primus      regarding       the    terms      of       his    appellate    waiver.       Primus

confirmed that he had reviewed the plea agreement with counsel.

The terms of the written waiver were “clear and unmistakable.”


       1
       Primus consented to arraignment by a magistrate judge.
See 28 U.S.C. § 636 (2006).



                                                   3
See Blick, 408 F.3d at 169.                   Further, Primus testified that he

understood the rights he was waiving through that provision, and

his age, education, and understanding of the English language

further      support     this    conclusion.          Under     the   totality    of    the

circumstances,           we     conclude           that     Primus     knowingly        and

intelligently         waived     his    appellate          rights    pursuant    to    this

provision.

                  Primus’ appellate waiver forfeited his right to appeal

any    sentence       below     the    statutory          maximum    provided    for   his

offense.          Primus in fact received such a sentence. 2                    Thus, we

grant the motion to dismiss insofar as it addresses an appeal of

Primus’ sentence.             However, because the waiver provision does

not foreclose a challenge to Primus’ conviction, we deny the

motion to dismiss insofar as it seeks to dismiss an appeal of

Primus’ conviction.

                  In accordance with Anders, we have reviewed the record

in this case and have found no potentially meritorious issues

that       fall    outside    the     scope    of    the     appellate    waiver.        We

therefore grant the Government’s motion to dismiss in part and

dismiss the appeal of Primus’ sentence.                      We also deny the motion

       2
       Insofar as a challenge to the sufficiency of the § 851
information filed by the Government could affect the statutory
maximum applicable to Primus, he received a sentence well below
the statutory maximum applicable even without the enhancement
for his prior conviction. See 21 U.S.C. § 841(b)(1)(C) (2006).



                                               4
to dismiss in part and affirm the district court’s judgment as

to   all    remaining      issues.        This    court    requires       that    counsel

inform Primus, in writing, of the right to petition the Supreme

Court      of   the   United     States    for    further       review.      If    Primus

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 Primus.

                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.

                                                                   AFFIRMED IN PART;
                                                                   DISMISSED IN PART




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