                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4649


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DERRICK ALAN MCCASKEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (2:10-cr-00016-BO-1)


Argued:   January 30, 2013                 Decided:   April 5, 2013


Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.


Affirmed in part; vacated in part by unpublished opinion.
Judge Gregory wrote the opinion, in which Chief Judge Traxler
and Judge Duncan joined.


ARGUED: Neal Gary Rosensweig, NEAL ROSENSWEIG, P.A., Hollywood,
Florida, 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.
Unpublished opinions are not binding precedent in this circuit.




                                  2
GREGORY, Circuit Judge:

     Derrick Alan McCaskey received a combined sentence of 200

months’ imprisonment following his guilty plea to one count of

conspiracy and possession with intent to distribute drugs, in

violation of 21 U.S.C. § 846, and one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922.              On

appeal, McCaskey challenges the district court’s compliance with

the requirements of Federal Rule of Criminal Procedure 11, and

notwithstanding the presence of an appeal waiver, asks us to

consider the reasonableness of his sentence.         For the reasons

that follow, we affirm in part and vacate in part McCaskey’s

conviction and sentence.



                                  I.

                                  A.

     As a result of extensive drug-related criminal activities,

McCaskey was charged with multiple counts in a fifteen-count

multi-defendant   superseding   indictment.   Pursuant   to   a   written

plea agreement, McCaskey pled guilty to two counts--Count One,

which charged him with conspiracy, and possession with intent,

to distribute drugs, in violation of 21 U.S.C. § 846; 1 and Count


     1
       McCaskey was held accountable for a drug amount with a
total marijuana equivalency of 8,556 kilograms.    The actual
drugs   consist  of  cocaine  base   (crack), dihydrocodeinone
(Continued)
                                       3
Fourteen, which charged him with being a felon in possession of

a   firearm,      in    violation    of    18     U.S.C.    § 922.      In   turn,   the

Government     agreed     to   dismiss      six     other   drug   charges        against

McCaskey.         The    written    plea    agreement       contained        an   express

waiver of McCaskey’s right to appeal the sentence imposed by the

district court. 2

      At    the   plea    hearing    required        by    Rule   11,    McCaskey     was

represented by counsel, and informed the court that he discussed

his case with his counsel and was satisfied with his counsel’s

representation.          McCaskey told the court that he was 22 years

old and had obtained a GED.                The district court confirmed that

McCaskey had read the plea agreement and had spoken with his




(Vicodin), 3,4-methylenedioxymethamphetamine (MDMA or ecstasy),
and marijuana.
      2
          The waiver provision in the plea agreement states:
             The Defendant agrees . . . [t]o waive 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, reserving only the right to
             appeal   from  a   sentence  in  excess   of  the
             applicable advisory Guideline range that is
             established at sentencing, and further waive all
             rights to contest the conviction or sentence in
             any post-conviction proceeding, including one
             pursuant to 28 U.S.C. § 2255, excepting an appeal
             or motion based upon grounds of ineffective
             assistance of counsel or prosecutorial misconduct
             not known to the Defendant at the time of the
             Defendant’s guilty plea.



                                                4
counsel about the agreement.                  The court summarized the charges

in the superseding indictment and the maximum penalties for each

count.         The    court         also   summarized       the     terms     of     the    plea

agreement and advised McCaskey of the rights he would forfeit by

pleading guilty--the right to have his case tried by a jury, the

right    at    trial      to    confront      and       cross-examine         the    witnesses

against him, and the waiver of these rights if the court accepts

the plea.       McCaskey responded that he understood he was giving

up these rights.           McCaskey denied that “anyone threatened [him]

or forced [him] to [plead guilty],” and affirmed that he was

“voluntarily”         pleading         guilty.      The    district       court      did     not

expressly ascertain whether McCaskey understood the implications

of the appeal waiver in the plea agreement.                              The court heard

from     the    Government           the   facts        supporting       Counts      One     and

Fourteen, found that there was a factual basis for the plea, and

that the plea was voluntary.                  Consequently, the court accepted

McCaskey’s plea as to Counts One and Fourteen, and dismissed the

other charges against him.

       Subsequently,            a     presentence         investigation         report       was

prepared       which      calculated         McCaskey’s        applicable           Sentencing

Guidelines range based on a total offense level of 33 and a

criminal       history         category     of     VI     as      188    to    235     months’

imprisonment, with a statutory maximum of 120 months on Count

Fourteen.            At   the       sentencing      hearing,       the    district         court

                                                    5
sentenced McCaskey to a total term of imprisonment of 200 months

consisting   of   200     months’      imprisonment         on   Count     One    and   a

concurrent 120-month sentence on Count Fourteen.

                                          B.

      McCaskey timely appealed arguing that:                     (1) his plea was

not   intelligent,      knowing,    and    voluntary         because    the     district

court failed to comply with the procedural requirements of Rule

11, and in tandem, the appeal waiver in the plea agreement is

unenforceable;    and     (2)   that    his        total    200-month     sentence      is

unreasonable.     The    Government        moved      to     dismiss      the    appeal,

arguing that McCaskey’s plea was knowing and voluntary and his

sentencing challenge fell within the scope of the waiver of his

right to appeal contained in the plea agreement.

      McCaskey filed an opposition to the motion to dismiss and

moved to file a supplemental brief.                   He argued that the record

failed to establish that he had previously been convicted for a

crime punishable by a term of imprisonment of more than one

year.   Consequently,      McCaskey       argued,      in    light   of    our   recent

decision in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc), he could not have been convicted of being a

felon in possession of a firearm.                   He asserted the guilty plea

was invalid and that the waiver did not bar his appeal.                              The

Government did not oppose the request for supplemental briefing.



                                               6
      We    granted      leave    to   file    the    supplemental    brief,      but

deferred ruling on the Government’s motion to dismiss, directing

the Government to respond to the merits of the appeal.                         In the

Government’s response on the merits, it repeated its arguments

in the motion to dismiss, but conceded that pursuant to Simmons,

McCaskey’s conviction and sentence as to Count Fourteen must be

vacated.     We    now    reach    the   merits      of   the   appeal    and    have

jurisdiction pursuant to 28 U.S.C. § 1291.



                                         II.

      We first address the adequacy of the Rule 11 hearing, then

we turn to the enforceability of the appeal waiver, and lastly,

in light of the Government’s concession, we consider the merits

of the appeal as to Count Fourteen.                Since McCaskey did not seek

to withdraw his guilty plea in the district court, he did not

preserve the errors as to the adequacy of the Rule 11 hearing

and the enforceability of the plea waiver, thus our review is

for plain error.          United States v. Hairston, 522 F.3d 336, 341

(4th Cir. 2008); United States v. Martinez, 277 F.3d 517, 527

(4th Cir. 2002).         To satisfy the plain error standard, McCaskey

must show:        (1) an error occurred; (2) the error was plain; and

(3)   the   error     affected     his   substantial      rights.        See    United

States v. Olano, 507 U.S. 725, 732 (1993). In addition, we need

not exercise discretion to correct the error “unless the error

                                               7
seriously affects the fairness, integrity or public reputation

of   judicial     proceedings.”        Id.     (internal     quotation       marks    and

alterations omitted).

                                           A.

      At   a    required    Rule    11   hearing,      the   district      court     must

“inform the defendant of, and ensure that he understands, the

nature of the charges against him and the consequences of his

guilty plea.”        Hairston, 522 F.3d at 340 (citing United States

v. Damon, 191 F.3d 561, 564 (4th Cir. 1999)).                    To ensure a plea

is   voluntary,      a   district      court     “must   address     the     defendant

personally      in   open      court     and    determine     that     the    plea     is

voluntary and did not result from force, threats, or promises

(other than promises in a plea agreement).”                      Fed. R. Crim. P.

11(b)(2).       Among other things, the district court must advise

and question the defendant regarding his right to a jury trial,

right to confront the witnesses against him, the nature of each

charge     to   which    the   defendant        is   pleading,   and    any    maximum

penalty the defendant faces.             Fed. R. Crim. P. 11(b).

      Applying these principles, upon review of the totality of

the circumstances in the record, we conclude that the district

court substantially complied with the requirements of Rule 11,

and McCaskey knowingly and voluntarily pled guilty to Counts One

and Fourteen of the superseding indictment.                      McCaskey contends

otherwise, arguing that the district court failed to:                          mention

                                                8
the waiver of his right to have a jury determine the existence

and applicability of his prior convictions; inform him that any

estimate of his sentence is not binding; advise him the court

would take the advisory guidelines into account; and apprise him

that relevant conduct would be considered in determining his

sentence.      Even assuming the district court erred by failing to

act as McCaskey specifies, the court’s omissions did not affect

McCaskey’s substantial rights because under the state of the law

at   the   time    of    the    hearing,     the       record     supports      McCaskey’s

convictions for Counts One and Fourteen.

      McCaskey makes much of the fact that had the district court

complied with his version of the requirements of Rule 11, he

would not have pled guilty to Count Fourteen, a charge for which

he could not presently be convicted.                        McCaskey overlooks the

fact that at the time of the hearing, when McCaskey pled guilty

to   being    a   felon    in   possession        of    a   firearm,       there     was    no

indication that the facts did not support the conviction.                                  The

district     court      operated   in    a   pre-Simmons          world,     where    under

United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), a

federal      defendant     could    be     convicted        of    being     a   felon      in

possession of a firearm, even though none of his prior state

convictions amounted to a “felony”--a crime punishable by more

than one year imprisonment.                  Thus, at the time, even if the

district      court’s     compliance       with    Rule      11    was     defunct,        the

                                               9
omissions did not affect McCaskey’s substantial rights because

under the then state of the law, he could have been convicted of

being    a    felon    in   possession         of    a    firearm.       Accordingly,         we

conclude that based on the totality of the circumstances, even

assuming       the     district        court        failed      to     comply     with       the

requirements of Rule 11, the omissions did not affect McCaskey’s

substantial rights and his plea was entered voluntarily.

                                               B.

     We also find that McCaskey knowingly and voluntarily waived

his right to appeal the sentence imposed.                        We have held that 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.   Marin,     961     F.2d      493,    496    (4th     Cir.    1992)

(citation omitted).           The validity of a waiver is “‘evaluated by

reference to the totality of circumstances.’”                           United States v.

Blick, 408 F.3d 162, 169 (4th Cir. 2005) (quoting United States

v. General, 278 F.3d 389, 400 (4th Cir. 2002).                          If the waiver is

knowing and intelligent, and the issue on appeal falls within

the scope of the waiver, we will enforce the waiver.                                    United

States v. Pointdexter, 492 F.3d 263, 270 (4th Cir. 2007).



                                                    10
       The    record    indicates          that   the     district          court    failed       to

inquire      expressly         whether       McCaskey          understood           the     waiver

provision. Nonetheless, we find that McCaskey fully understood

the    significance      of     the    waiver.           At    the     time    of     the       plea

hearing, McCaskey was a 22-year old with a GED.                              He informed the

district      court    that     he    was    able       to    read,     write,       speak       and

understand English.            The written plea agreement as a whole, and

particularly      the    appeal       waiver,      is    clear.         McCaskey          and    his

counsel      signed     the    written       agreement          acknowledging             that    he

understood the terms of the plea and informed the district court

that he understood the rights he was giving up.                               Thus, although

the    district        court     failed       to        inquire        as     to     McCaskey’s

comprehension of the waiver, because we find that McCaskey fully

understood      the    consequences          of    the       waiver,    and    there        is    no

indication that McCaskey would not have pled otherwise, we find

that    the     error     did        not     affect          his   substantial             rights.

Accordingly, the appeal waiver is valid.

       McCaskey’s challenge to the reasonableness of his sentence

falls within the scope of the valid appeal waiver.                                  In his plea

agreement,      McCaskey       waived       his    right      to   appeal      any        sentence

imposed by the district court that fell within the applicable

guideline      range.    McCaskey’s          200-month         sentence       on     Count       One

falls within his advisory guideline range of 188 to 235 months’

imprisonment,      and    the     concurrent        120-month          sentence       on     Count

                                                   11
Fourteen     is    the    statutory     maximum        sentence.      As     McCaskey’s

sentence falls within the applicable guideline range, we hold

that McCaskey waived his right to appeal the reasonableness of

his sentence.

                                           C.

       Notwithstanding the validity of the plea and enforceability

of the appeal waiver, the Government seeks to enforce the appeal

waiver     selectively,        conceding     that      Count      Fourteen    must    be

vacated, but seeking enforcement of the appeal waiver on Count

One.     We believe the Government can so proceed.                          See United

States v. Brock, 211 F.3d 88, 90 n.1, 92 n.6 (4th Cir. 2000)

(reviewing an argument that fell within the scope of a waiver,

but refraining from reviewing another argument which also fell

within the waiver because the Government sought enforcement as

to the latter but not the former argument).                         In light of the

Government’s posture, we turn to the merits of the appeal of

Count Fourteen.

       Although the Government concedes that McCaskey’s conviction

and    sentence    must       be   vacated   in      light   of    our     decision   in

Simmons, 649 F.3d 237, this concession does not necessarily end

our    inquiry,    as    we    must   satisfy        ourselves     that     vacatur   is

warranted.        See United States v. Rodriguez, 433 F.3d 411, 414

n.6 (4th Cir. 2006).



                                                12
      To qualify as a predicate offense under 18 U.S.C. § 922(g),

for   being    a     felon     in    possession         of     a    firearm,       the     prior

conviction must have been “punishable by imprisonment for a term

exceeding     one     year.”         18   U.S.C.        § 922(g).            The    predicate

offenses for McCaskey’s firearm count arise from a consolidated

sentence of 6 to 8 months that McCaskey received in 2006 on

three North Carolina convictions--breaking and entering a motor

vehicle, possession with intent to sell and deliver marijuana,

and   manufacturing      marijuana,          in    violation         of    North     Carolina

General Statutes §§ 14-56, 90-95.                      As stated in McCaskey’s 2006

Judgment    and     Commitment,       each    of       these      offenses    are    Class    I

felonies,      and    because        McCaskey          was     sentenced       within       the

presumptive range, the maximum sentence he could have received

was 8 months’ imprisonment.               Because the prior convictions fail

to qualify as a prior felony for purposes of being a felon in

possession of a firearm, we vacate McCaskey’s conviction and

sentence on Count Fourteen.                  We note that McCaskey’s 200-month

sentence on Count One is unaffected by this disposition because

his 120-month sentence on Count Fourteen was to run concurrently

with the sentence on Count One.



                                              III.

      For     the    reasons        stated    above,         we    grant     in     part     the

Government’s motion to dismiss the appeal as it relates to Count

                                                  13
One, but deny it as to Count Fourteen.   Additionally, we affirm

McCaskey’s sentence on Count One, but vacate his conviction and

sentence as to Count Fourteen.

                                               AFFIRMED IN PART;
                                                 VACATED IN PART




                                 14
