                                PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 13-4159


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

SHERWIN ARCHIE,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00017-BO-1)


Argued:   September 17, 2014              Decided:   November 17, 2014


Before GREGORY, AGEE, and KEENAN, Circuit Judges.


Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Gregory and Judge Keenan joined.


ARGUED: Joshua Brian Howard, GAMMON, HOWARD, ZESZOTARSKI, PLLC,
Raleigh, North Carolina, for Appellant.         Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.     ON BRIEF: Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
AGEE, Circuit Judge:

      Pursuant          to    a    written    plea        agreement,         Sherwin    Archie

(“Archie”) pled guilty to several charges stemming from an armed

robbery       in     Wilmington,       North       Carolina.            Archie      does     not

challenge his conviction or guilty plea on appeal.                                 Instead, he

contends that the district court sentenced him in violation of

the Sixth Amendment and relied upon insufficient evidence in

enhancing his sentence under the Armed Career Criminal Act, 18

U.S.C.    §    924(e)        (“ACCA”).       For        the   reasons    that      follow,    we

affirm the judgment of the district court.



                                              I.

      The     facts      underlying      Archie’s         conviction     are       undisputed.

On October 19, 2011, Archie entered a Family Dollar store with a

firearm and demanded money from the cashier.                            He fled the scene

with $187, but security cameras captured the robbery showing

Archie.       Several days later, police executed a search warrant on

his   home         where     the    firearm        used       during    the     robbery      was

recovered.          Archie later confessed to the Family Dollar robbery

along with an unsolved bank robbery.

      A federal grand jury indicted Archie for possession of a

firearm       by    a   convicted     felon        in    violation      of    18    U.S.C.    §§

922(g)(1) and 924 (Counts One and Four); Hobbs Act robbery in

violation of 18 U.S.C. § 1951 (Count Two); using and carrying a

                                               2
firearm in furtherance of a crime of violence in violation of 18

U.S.C. § 924(c) (Counts Three and Six); and armed bank robbery

in violation of 18 U.S.C. § 2113 (Count Five).

     In a written plea agreement, Archie agreed to plead guilty

to Counts One, Two, and Three of the indictment in exchange for

dismissal of the remaining charges.     Under the terms of the plea

deal, Archie agreed

            [t]o waive knowingly and expressly all
            rights, conferred by 18 U.S.C. § 3742, to
            appeal   whatever     sentence   is    imposed,
            including any issues that relate to the
            establishment   of   the   advisory   Guideline
            range that is established at sentencing, and
            further to waive all rights to contest the
            conviction   or   sentence   in   any   post[-]
            conviction proceeding[.]

(J.A. 29.)     The plea agreement advised Archie of the statutory

sentencing range for each charge and noted that, based on his

criminal history, he could face a sentencing enhancement under

the ACCA.    Pertinent to this appeal, Archie and the Government

also acknowledged that the statutory minimum penalty for the

firearm offense in Count Three would be “7 years.”     (J.A. 34.)

     At the ensuing plea hearing, Archie affirmed that he had

discussed the case with his attorney and was “satisfied with

[his] law work.”     (J.A. 20.)   After finding Archie competent to

proceed, the district court explained the appeal waiver and the

rights forfeited by pleading guilty.       Archie acknowledged that

he understood.     Continuing its reference to the terms of the

                                  3
plea agreement, the district court described the charges and the

potential      penalties          for    each    offense.                With    regard     to    Count

Three,    the       court    noted       that    Archie            could    face    a     penalty      of

“seven    years       to    life.”         (J.A.         21-22.)           But    the     court    also

recognized      that        the    seven-year            minimum         sentence       applied    only

when    the    firearm       was     “brandished”              during       the    crime,       see    18

U.S.C.     §    924(c)(1)(A),             and    the       indictment             did    not     assert

brandishing as a separate element.                                 Accordingly, the district

court asked the Government whether it needed “to allege in the

indictment      that        [the    gun]       was       brandished         in    order    for     [the

minimum]       to    be     seven        years[.]”             (J.A.        23.)         Citing       the

appropriate         applicable           law    at       the       time,    Government         counsel

responded that brandishing was a “sentencing factor that [did]

not have to be specifically alleged [in the indictment.]”                                         (Id.)

Defense       counsel       did     not    object.                 The     district      court     then

accepted Archie’s guilty plea, finding it freely and voluntarily

entered.

       In preparation for sentencing, the United States Probation

Office prepared a presentence investigation report (“PSR”).                                           The

PSR designated Archie an armed career criminal under the ACCA

based on three prior felony convictions: a 1977 third-degree

robbery    conviction             from    New   York;          a    1983     attempted         burglary

conviction from New York; and a 1994 assault conviction from

North    Carolina.            The       ACCA    designation              caused     the    statutory

                                                     4
minimum    sentence     for   Counts          One    and   Two    to    increase       to    180

months.     As the parties contemplated at the time of the plea,

the PSR also included an 84-month minimum sentence for Count

Three because the investigatory evidence established that Archie

had   indeed   brandished       the       firearm       during     the    Family       Dollar

robbery.     After several other adjustments not relevant here, the

PSR   calculated      Archie’s       total         offense    level      at    30     and   his

criminal history category at IV.                     That resulted in a guidelines

sentencing     range     of   135        to    168    months,      falling          below    the

statutory minimums noted above.

      Before sentencing, Archie objected to his career offender

designation under the ACCA, arguing that the Government lacked

adequate factual support for the New York third-degree robbery

conviction.     Archie contended that several of the computerized

records    relied      upon   to     establish         this      conviction         contained

inconsistent     dates,       and        one       document      included       a    criminal

indictment     number    tied       to    another       defendant.            According      to

Archie, these inconsistencies, when coupled with the age of the

conviction,    “insert[ed]          the       possibility        [of]    more       than    just

scrivener’s error but, indeed, wholesale mistake.”                            (J.A. 41.) 1



      1
        Archie also contested the 1983 conviction on similar
grounds, but withdrew that objection before the sentencing
hearing. Archie makes no argument as to the 1983 conviction on
appeal.


                                               5
       The district court overruled Archie’s objection, concluding

the Government’s records were sufficient to establish the New

York conviction by a preponderance of the evidence.                     Adopting

the PSR, the district court sentenced Archie to the mandatory

minimum - 180 months’ incarceration for Counts One and Two and a

consecutive 84 months’ incarceration for Count Three.

       Four months after Archie’s sentencing, the Supreme Court

decided Alleyne v. United States, 133 S. Ct. 2151 (2013).                       In

Alleyne, the Court overruled existing precedent and held that

“any fact that increases the mandatory minimum is an ‘element’

that    must     be   submitted   to   the     jury”   and    found   beyond     a

reasonable doubt.         133 S. Ct. at 2155.       In Alleyne, as here, the

defendant       was   convicted   of   using    a   firearm    during    and    in

relation to a crime of violence under 18 U.S.C. § 924.                  Id.    The

district court in that case concluded the mandatory minimum for

the charge was 84 months based on its finding by a preponderance

of the evidence at sentencing that a firearm was “brandished.”

Id.    at   2156.      The   Supreme   Court    reversed      and   vacated    the

defendant’s sentence because the “[j]udge rather than the jury,

found brandishing, thus violating [his] Sixth Amendment rights.”

Id. at 2163-64.

       Archie    timely    appealed,   and   this   Court     has   jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.



                                        6
                                            II.

       Archie raises two issues on appeal.                   First, he argues the

district court violated his Sixth Amendment rights as set forth

in Alleyne when it raised the statutory minimum sentence for his

firearm conviction based on a judicial finding of brandishing.

Second,    Archie      contends   the       Government     presented       insufficient

evidence to sustain his career offender designation under the

ACCA.



                                            A.

       We first consider whether Archie waived the right to argue

on     appeal   that    the    district       court      improperly      enhanced     his

sentence based on judicially determined facts in violation of

Alleyne.

       It is well settled that a criminal defendant may waive the

statutory right to appeal his sentence.                     See United States v.

Marin,    961    F.2d   493,    496   (4th        Cir.   1992);    United    States    v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                     Where, as here, the

Government seeks enforcement of an appeal waiver and there is no

claim that the Government breached its obligations under the

plea    agreement,      the    waiver       will    be   enforced     to    preclude   a

defendant       from    appealing       a    specific      issue    if      the    record

establishes      that    the    waiver       is    valid    and    the     issue   being

appealed is within the scope of the waiver.                        United States v.

                                             7
Attar, 38 F.3d 727, 731–33 (4th Cir. 1994); see also United

States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (“An

appellate waiver is valid if the defendant’s agreement to the

waiver was knowing and intelligent.”).

     Archie does not contest the validity of his appeal waiver,

and the record confirms that it was knowing and voluntary.                       See

United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013)

(concluding    defendant      knowingly    and    intelligently         waived   his

right to appeal where, during the plea colloquy, he affirmed

“that he had ‘read and discuss[ed] [the] entire plea agreement

with [his] lawyer’ before signing it, and that he ‘underst[ood]

each term’ in it.” (alteration in original)).                      Archie’s sole

challenge is that his Alleyne claim falls outside the scope of

the appeal waiver.      It does not.

     At the time of Archie’s sentencing, Supreme Court precedent

dictated    that    factors   triggering    mandatory        minimum     sentences

“need not be alleged in the indictment, submitted to the jury,

or proved beyond a reasonable doubt.”              Harris v. United States,

536 U.S. 545, 568 (2002); see Alleyne, 133 S. Ct. at 2155 (“In

Harris . . . this Court held that judicial factfinding that

increases     the   mandatory     minimum    sentence        for    a    crime    is

permissible    under    the   Sixth   Amendment.”).          Accordingly,        the

district    court    correctly    applied        the   law   under      Harris   by

enhancing Archie’s minimum sentence based on its finding that

                                       8
Archie     had    brandished          a    firearm.            Although          Alleyne      later

overruled Harris after Archie’s sentencing hearing, that post-

sentencing       change    in     the      law       does    not    void       Archie’s     appeal

waiver.

       We addressed the proper scope of an appeal waiver in light

of a subsequent change in the law in United States v. Blick, 408

F.3d 162 (4th Cir. 2005).                  There, the defendant entered into a

plea    agreement       and     was       sentenced          before      the     Supreme      Court

decided United States v. Booker, 543 U.S. 220 (2005).                                      Despite

an    appeal     waiver    provision            barring       him     from     appealing       “any

sentence       within     the     maximum             provided      in       the    statute      of

conviction,”       Blick        argued          on     appeal       that       he    should      be

resentenced       in    light     of      the     change      in    the      law    that    Booker

effected.        Blick, 408 F.3d at 169.                     We concluded Blick’s claim

was    within     the     scope    of       his       valid    appeal        waiver     because,

“[a]lthough       the     law     changed            after    Blick       pled      guilty,    his

expectations (as reflected in the plea agreement) did not.”                                     Id.

at 173.        Indeed, “Blick was sentenced precisely in the manner

that he anticipated.”             Id.       We emphasized that “[p]lea bargains

rest on contractual principles, and each party should receive

the    benefit     of    its    bargain.”              Id.         Consequently,        a     party

“‘cannot . . . ask to re-bargain the waiver of his right to

appeal because of changes in the law.’”                               Id. at 170 (quoting

United States v. Lockett, 406 F.3d 207, 214 (3d Cir. 2005)).

                                                  9
       “A    plea    agreement,         like     any    contract,          allocates          risk.”

United States v. Johnson, 410 F.3d 137, 153 (4th Cir. 2005).

“And the possibility of a favorable change in the law occurring

after a plea is one of the normal risks that accompan[ies] a

guilty plea.”            United States v. Sahlin, 399 F.3d 27, 31 (1st

Cir.   2005).           Archie       assumed    this        risk    in     exchange      for      the

Government’s concessions, and he was sentenced in exactly the

manner agreed upon.               If we declined to enforce Archie’s appeal

waiver      because      of   a      subsequent      change        in    the    law,     we    would

deprive      the    Government          of   the     benefit         of    its       bargain      and

frustrate the purpose underlying such contracts.

       Archie’s assertion that he is entitled to the benefit of

Alleyne      on    appeal       is    indistinguishable             from       the    appellant’s

argument in Blick.            Archie expressly waived his right “to appeal

whatever sentence . . . imposed,” along with “all rights to

contest      the    conviction          or   sentence         in     any       post    conviction

proceeding[.]”            (J.A.       29-30.)        Like     the       appellant      in     Blick,

Archie received           a   sentence       that    fully         complied       with      the   law

applicable         at     the        time,      “precisely          in      the       manner       he

anticipated.”            408 F.3d at 173.               Consequently, Archie cannot

invalidate         his    appeal         waiver        to     claim        the        benefit      of

subsequently issued case law even if it suggests his sentence

now would be different.



                                                10
     Notwithstanding          the    foregoing,         Archie     contends      that    his

Alleyne claim falls “within the narrow class of [errors] that we

have allowed a defendant to raise on direct appeal despite a

general waiver of appellate rights.”                    United States v. Lemaster,

403 F.3d 216, 220 n.2 (4th Cir. 2005).                          According to Archie,

“proceedings which affect Constitutional rights and fundamental

fairness,” such as the instant claim, “fall outside the scope of

such waivers.”       (Reply Br. 2.)

     To   be   sure,     in        limited      circumstances,       “a    knowing       and

voluntary    waiver    of     the    right      to     appeal    cannot    prohibit      [a]

defendant    from    challenging        a      few     narrowly-construed        errors.”

Johnson, 410 F.3d at 151.              However, we have reached this result

and declined to enforce a valid appeal waiver only where the

sentencing     court     violated          a    fundamental        constitutional        or

statutory    right     that    was     firmly        established     at    the    time    of

sentencing.     Such is not the case here.                      See Attar, 38 F.3d at

732–33 (holding that a valid appeal waiver does not bar review

of a post-plea violation of the right to counsel); United States

v.   Broughton–Jones,         71    F.3d       1143,    1146-47     (4th    Cir.     1995)

(finding defendant’s claim that the district court’s restitution

order was statutorily barred fell outside appeal waiver).                           These

limited exceptions were permitted on the narrow grounds that “a

defendant’s agreement to waive appellate review of his sentence

is implicitly conditioned on the assumption that the proceedings

                                               11
following entry of the plea will be conducted in accordance with

constitutional limitations.”            Attar, 38 F.3d at 732.           Clearly,

the rationale underlying these cases is absent when the alleged

error   stems    from   a   subsequent       change   in   the   law   and   not    a

failure by the court to apply the established law at the time of

sentencing.      Accordingly, we have never permitted a criminal

defendant   to    avoid     a   valid   and    applicable    appeal    waiver      by

claiming error based on a subsequent change in the law.

     In short, defendants cannot knowingly and voluntarily enter

an appeal waiver, receive a sentence that fully complies with

the law applicable at the time of sentencing, and then, when

that law later changes, argue that the issue falls outside the

binding scope of the waiver.             Notwithstanding the Government’s

concession during oral argument that Archie’s sentence would now

be different under Alleyne, we deny his claim because it falls

within the scope of the valid appeal waiver.



                                        B.

     The ACCA mandates a minimum fifteen-year prison sentence

for a person convicted of unlawful possession of a firearm who

“has three previous convictions . . . for a violent felony or a

serious drug offense, or both, committed on occasions different

from one another[.]”        18 U.S.C. § 924(e)(1).          Thus, to apply the

ACCA enhancement, the court must find: (1) that at least three

                                        12
prior convictions exist, (2) that those convictions were for

either a violent felony or a serious drug offense, and (3) that

the prior offenses were committed on different occasions from

one   another.      Id.         The    prosecution    bears      the    burden    of

establishing these elements by a preponderance of the evidence.

See United States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009),

abrogated    on   other   grounds      as    stated   in,   United      States    v.

Aparicio-Soria, 740 F.3d 152, 155-56 (4th Cir. 2014); see also

United States v. Thompson, 421 F.3d 278, 283-85 (4th Cir. 2005). 2

      The PSR filed in the district court identified three ACCA

qualifying convictions: a 1977 third-degree robbery conviction

from New York, a 1983 attempted burglary conviction from New

York, and a 1994 assault conviction from North Carolina.                    Archie

does not dispute that these offenses constitute violent felonies

within the meaning of the ACCA for a defendant convicted of such

crimes or that the offenses listed were committed on different

occasions.    He only challenges whether the Government presented

sufficient   evidence     for    the    district   court    to   find    that    the

third-degree robbery conviction in fact exists.                        Pointing to

      2
       The Government declined to rely on the appeal waiver with
respect to Archie’s second claim - that the district court erred
in sentencing him as an armed career criminal under the ACCA.
Accordingly, we review this claim of error on its merits.    See
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)
(noting the government can elect not to enforce an appeal waiver
and instead contest the merits of a defendant’s argument).



                                        13
discrepancies in the documents underlying the PSR, Archie argues

that the Government’s evidence is insufficient to prove the fact

of   conviction        as    to    him.         Since     this    is   a   purely   factual

dispute,       we   review        the    district       court’s    judgment      for   clear

error.        See United States v. Wardrick, 350 F.3d 446, 451 (4th

Cir. 2003).

       In siding with the Government and finding that Archie was

convicted of the New York third-degree robbery, the district

court relied on four documents: a computerized printout from the

New York Department of Corrections (“Appendix A”); a Certificate

of Disposition from the clerk of the Supreme Court of the State

of     New     York,    Kings          County      (“Appendix      B”);     a   Report      of

Investigation from the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“Appendix C”); and a computerized form from the New

York Supreme Court Criminal Term Correspondence Unit (“Appendix

D”).    (J.A. 44-51.)

       Appendices       A,    B,        and   C    each    provide     that     Archie   was

convicted of third-degree robbery in 1977 in Kings County, New

York.        Appendix A states that Archie entered the New York penal

system for this charge on July 11, 1977, but does not show the

date    of     conviction         or    docket     number.        Appendix      B   lists   a

conviction date of June 9, 1977 and sentencing on the same date.

Appendix C, on the other hand, provides a conviction date of

June 13, 1978.          Appendices B, C, and D each identify the same

                                                  14
docket    number,       “3611-76,”          and    list    Archie     as   the    offender.

(J.A.    47-51.)         Appendix       D    also    recognizes       an   inaccuracy       in

Appendix C, stating that one of the other docket numbers linked

to Archie in Appendix C “was not the same defendant.”                                    (J.A.

51.)     In sum, Appendices A, B, and D each provide consistent

accounts     of       Archie’s        conviction       for     third-degree        robbery,

whereas Appendix C provides a conflicting conviction date.

        Archie        points    to     our        decision    in     United      States     v.

Martinez-Melgar,          591    F.3d        733     (4th     Cir.     2010),      for    the

proposition that reference to secondary records, such as those

described     above,       to     determine          the     existence      of     a     prior

conviction       is     only    allowed       when        “‘there    is    no    indication

whatever that the state records are inaccurate.’”                             (Opening Br.

at 14 (quoting Martinez-Melgar, 591 F.3d at 739).)                               But, as we

have since indicated, this language from Martinez-Melgar must be

considered in context and does not sweep so broadly.                             See United

States v. Washington, 629 F.3d 403, 412-13 (4th Cir. 2011).

       In Washington, this court examined the very question at

issue here – what records may the district court consider in

determining the fact of a defendant’s prior conviction.                                    Id.

Washington held that a sentencing court can rely on materials

such as certified computer printouts to prove the fact of a

prior    conviction.            Id.     at    413     (“[T]he       district     court     was

entitled to consider what it did, including the printouts of

                                              15
docket materials, in determining merely the specific offense to

which    [the    defendant]       pled    guilty.           In    keeping       with     this

distinction,         courts    have     routinely       used      such    documents         in

determining      the    mere     existence       of   a     conviction.”            (footnote

omitted)).       The     court    further       affirmed     the       district      court’s

reliance        on      such          materials       notwithstanding                several

inconsistencies in the documents.                     Id.        Accordingly, despite

Archie’s      contention       otherwise,       there       is    no     prohibition        on

secondary records simply because they may contain discrepancies

regarding a prior conviction.

       Archie nevertheless argues that the Government “failed its

burden   because       the    conviction    they      projected         upon    [him]     was

indeterminately dated, premised upon secondary records, and even

those records were contradictory and unreliable.”                          (Opening Br.

15.)    We are unpersuaded.

       When   called     upon    to    determine      the    existence         of    a   prior

conviction for sentencing purposes, a district court can engage

in permitted “fact-finding in a routine and conscientious sense”

even if “inconsistencies and clerical mistakes [exist] in state

records[.]”      Washington, 629 F.3d at 414-15.                    That is precisely

what occurred here.           The district court weighed the evidence and

reasonably      found    that    the     same    named      defendant,      Archie,        was

convicted of third-degree robbery in 1977 in Kings County, New

York based upon the information in all the underlying documents,

                                           16
the     conviction        date        listed      in    Appendix         B,   the    consistent

incarceration         date       in       Appendix      A,     and   the      uniform    docket

numbers.        (See J.A. 67 (“[I]f you follow the records that the

Government has submitted, it looks like all the crimes charged

were charged in ‘76.              It appears to me that he had a plea in ‘77

and then a sentence in ‘78.                     At least that’s the way it looks to

me.”).)     We see no clear error in this conclusion.                               See United

States v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (“A court

reviewing for clear error may not ‘reverse . . . [unless], on

the   entire     evidence,           it    is    left   with     the     definite     and    firm

conviction       that      a     mistake         has    been     committed.’”         (citation

omitted)).

      When faced with records that contain inconsistencies, this

court     has     concluded           that       certain       discrepancies,         such     as

different dates of the same offense, “do not upend the trial

court’s sound conclusion” when there is additional evidence to

“indicate       the   .    .     .     erroneous        date    .    .    .   is    [likely]    a

scrivener’s error.”              Washington, 629 F.3d at 413.                      We therefore

decline to disturb the district court’s finding.



                                                 III.

      For the foregoing reasons, the judgment of the district

court is

                                                                                      AFFIRMED.

                                                  17
