                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5176



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WENDELL ANTONIO JOHNSON,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (CR-04-128)


Submitted:   October 24, 2007          Decided:     December 11, 2007


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Matthew W. Greene, SMITH & GREENE, P.L.L.C., Fairfax, Virginia, for
Appellant.    Donald Ray Wolthuis, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Wendell    A.   Johnson      pled    guilty   to   conspiracy    to

distribute 50 grams or more of cocaine base and five kilograms of

cocaine, in violation of 21 U.S.C. § 846 (2000) (Count One),

distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)

(2000) (Count Seven), and possession with intent to distribute 500

grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)

(2000) (Count Eight).      The district court sentenced Johnson to 300

months’ imprisonment on each of Counts One and Eight and a term of

240 months on Count Seven, all to be served concurrently, imposed

a five-year term of supervised release on each count, all to run

concurrently, and ordered Johnson to pay a $300 special assessment.

Johnson   noted   a   timely   appeal    from    the   amended   judgment   of

conviction,1 and Johnson’s counsel has filed a brief pursuant to

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

no meritorious grounds for appeal, but questioning whether the



     1
      The judgment was amended to correct a clerical error.
Counsel had filed a motion requesting correction of the Judgment
Order to reflect that the narcotics with which Johnson was involved
was cocaine powder, not cocaine base, as reflected in the Judgment
Order.    On February 2, 2007, the district court entered a
Memorandum Opinion and Order and an Amended Judgment, in which it
granted the motion in part, and denied it in part. Specifically,
the district court found that the judgment order’s description of
Count Seven should be changed to reflect that the offense was
distribution of cocaine, not cocaine base. However, the district
court found that because Johnson had pled guilty to a conspiracy
that had two objectives (cocaine and cocaine base distribution),
Counts One and Eight were accurately described, even though Johnson
was held accountable only for cocaine powder at sentencing.

                                  - 2 -
district court committed reversible error in failing to sua sponte

order a second hearing,2 as to whether Johnson voluntarily and

knowingly pled guilty.    Johnson was given an opportunity to file a

pro se brief, but has failed to do so.

            The Government has moved to dismiss the appeal, asserting

that because Johnson validly waived his right to appeal sentencing

guideline factors and determinations, in his plea agreement, we

lack jurisdiction over the appeal.   We grant the motion in part and

deny it in part, as discussed below.

            A defendant may waive the right to appeal if that waiver

is knowing and intelligent.    United States v. Amaya-Portillo, 423

F.3d 427, 430 (4th Cir. 2005).     Generally, if the district court

fully questions a defendant regarding the waiver of his right to

appeal during the Fed. R. Crim. P. 11 colloquy, 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

(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

Johnson knowingly and voluntarily waived the right to appeal his

sentence.    Although the waiver provision in the plea agreement


     2
      Johnson contends this hearing should have been conducted
prior to the district court’s entry of its Amended Order correcting
the clerical error.

                                - 3 -
precludes our review of the sentence, we note that Johnson did not

waive his right to appeal his conviction.             Thus the waiver does not

preclude our review of the issue Johnson raises by counsel, nor any

error in Johnson’s conviction that may be revealed by our review

pursuant to Anders.

                  We find that Johnson has not presented a fair and just

reason to support his claim that a second evidentiary hearing was

necessitated, nor was he entitled to a hearing as a matter of

right.          He does not contend that his Rule 11 hearing was improper,

nor is any error evident on the record relative to that hearing.3

He does not contend that he sought a second guilty plea hearing

and,       in    fact,   contends   that   the   district   court   should   have

conducted such a hearing sua sponte.              There is no legal basis to

support such a contention, nor does Johnson provide any.                      The

correction made by the district court with regard to the Amended

Judgment was clerical in nature, and was made to clarify that, as

to Count Seven, Johnson would be held accountable for distribution

of powder, not crack, cocaine.4              The amendment to the Judgment


       3
      Johnson did not move in the district court to withdraw his
guilty plea, and any error committed during the Fed. R. Crim. P. 11
hearing is reviewed for plain error.        See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
       4
      As the district court held, Count One related to the
conspiracy count, and Johnson clearly pled guilty to involvement
with a conspiracy that distributed and possessed both powder and
crack cocaine, as reflected in the indictment. As such, Count One
was accurately described in the Judgment Order and no amendment was
required. Moreover, Count Eight related to possession and intent

                                       - 4 -
Order did not in any way affect Johnson’s guilty plea.           Rather, it

was merely reflective of the plea Johnson entered into in the first

instance.      Correction of a clerical error such as this does not

necessitate an evidentiary hearing, nor was it error for the

district court not to sua sponte offer such a hearing to Johnson.

The record is clear as to the offenses to which Johnson pled

guilty.   No evidentiary hearing was necessary, and Johnson’s claim

of error in the district court’s failure to provide him with such

a   hearing    is   without   merit.   Thus,   we   deny,   in   part,   the

Government’s motion to dismiss and affirm Johnson’s conviction.

              In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues not

covered by the waiver.        We therefore affirm Johnson’s conviction

and dismiss any appeal of his sentence.        We further deny, at this

juncture, counsel’s motion to be relieved.           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


to distribute cocaine, and also was accurately described in the
Judgment Order. Hence, the only amendment necessary was to correct
that portion of the judgment order that related to Count Seven to
reflect that Johnson possessed with the intent to distribute
cocaine, not crack cocaine.

                                   - 5 -
client. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                AFFIRMED IN PART;
                                                DISMISSED IN PART




                              - 6 -
