                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4647



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KAMRAN MUZAFFAR MALIK, a/k/a Nasar A. Khara,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-9021)


Submitted:   October 28, 2005             Decided:   December 7, 2005



Before LUTTIG, MOTZ, and KING, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Atiq R. Ahmed, Silver Spring, Maryland, for Appellant. Paul J.
McNulty, United States Attorney, Steven A. Linick, Assistant United
States Attorney, Ian R. Conner, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Kamran Muzaffar Malik appeals his conviction and sentence

after pleading guilty to one count of conspiracy to commit credit

card fraud in violation of 18 U.S.C. § 1029(b)(2) (2000).     In a

prior opinion, we granted the Government’s motion to dismiss in

part and affirmed the district court’s judgment.   United States v.

Malik, No. 03-4647, 2004 WL 2434959 (4th Cir. Nov. 1, 2004)

(unpublished). The Supreme Court   granted certiorari, vacated the

decision, and remanded for reconsideration in light of United

States v. Booker, 125 S. Ct. 738 (2005).   Malik v. United States,

125 S. Ct. 1751 (2005).

          Having reviewed the case in light of Booker, we conclude

that we reached the correct result in our first decision.      The

issue of whether the district court abused its discretion in

denying Malik’s motion to withdraw his guilty plea is unaffected by

the Booker decision, and Malik does not challenge our prior ruling

in his supplemental brief. We conclude that the district court did

not abuse its discretion in denying the motion to withdraw. United

States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).

          The second claim Malik initially raised on appeal is that

the district court erred in using the 2002 edition of the U.S.

Sentencing Guidelines Manual rather than the 2000 edition. We held

in our prior opinion that Malik waived this issue by waiving his

right to appeal.   Having reviewed the issue in light of Booker, we


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remain convinced that the waiver was knowing and voluntary and that

the claim is within the scope of that waiver.           See United States v.

Blick, 408 F.3d 162, 170, 173 (4th Cir. 2005) (holding a plea

agreement’s waiver of the right to appeal that was accepted prior

to the Supreme Court’s decision in Booker was not invalidated by

the change in law effected by that decision).             We reject Malik’s

contention, raised for the first time in his supplemental brief,

that    the    Government   breached       the   plea   agreement,    thereby

invalidating the waiver.

              Finally, we reject Malik’s allegation that his sentence

exceeded the statutory maximum.        While such a claim is not barred

by an appellate waiver, see United States v. Johnson, 410 F.3d 137,

151 (4th Cir. 2005) (a defendant cannot waive appellate review of

a sentence in excess of the statutory maximum), Malik’s fifty-seven

month sentence is well within the ninety-month statutory maximum

set out in 18 U.S.C.A. § 1029(b)(2), (c) (West 2000 & Supp. 2005).

Malik’s argument that the term statutory maximum, as used under

Booker, means the maximum guideline sentence, is without merit.

              Having reconsidered Malik’s appeal in light of Booker, we

affirm his conviction and grant the Government’s motion to dismiss

the appeal of his sentence.           We deny Malik’s motion for bond

pending appeal as moot. We dispense with oral argument because the

facts   and    legal   contentions   are     adequately   presented   in   the




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materials   before   the   court   and     argument   would   not   aid   the

decisional process.

                                   AFFIRMED IN PART; DISMISSED IN PART




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