                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-6467


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GEOFFREY H. SIMMONS, JR., a/k/a Geoffrey Henderson Simmons,
Jr.,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:04-cr-00003-FL-1)


Submitted:    March 3, 2009                 Decided:   March 23, 2009


Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Anne Margaret Hayes, Steve R.
Matheny, Assistant United States Attorneys, Frank DeArmon
Whitney, United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Geoffrey H. Simmons, Jr., appeals from his convictions

and sentence for possession with intent to distribute cocaine,

cocaine     base,      and    marijuana,      and    possession         of   a    firearm   in

relation     to    a    drug     trafficking        crime.        On    appeal,      Simmons’

attorney has filed an Anders * brief, noting that Simmons waived

the   right       to    appeal      his    sentence,       but    questioning         whether

Simmons was properly sentenced under United States v. Booker,

543 U.S. 220 (2005), and Kimbrough v. United States, 128 S. Ct.

558   (2007),          both    of     which       were     decided       after       Simmons’

sentencing.        Simmons was informed of his right to file a pro se

supplemental brief, but he has not done so.                            The Government has

filed a motion to dismiss the appeal on the basis of Simmons’

waiver of the right to appeal in his plea agreement.

             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).                               To determine

whether a waiver is knowing and intelligent, this court examines

“the totality of the circumstances, including the experience and

conduct of the accused, as well as the accused’s educational

background        and     familiarity         with       the     terms       of    the     plea

agreement.”         United States v. General, 278 F.3d 389, 400 (4th

      *
          Anders v. California, 386 U.S. 738 (1967).



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Cir.    2002)   (internal      quotation          marks    and   citation    omitted).

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).

              The   transcript       of     the     plea    hearing    reveals      that

Simmons, a twenty-nine-year-old high school graduate, understood

the    waiver   provision      in    his     plea     agreement.        In   his    plea

agreement, Simmons specifically waived the right to challenge

his sentence on appeal, reserving only the right to challenge an

upward    departure     from     the        Guidelines      range     established     at

sentencing, and Simmons averred at his Rule 11 hearing that he

read and understood the plea agreement.                      We therefore conclude

that Simmons knowingly and intelligently waived the right to

appeal his sentence.

              Turning to the scope of the waiver, the sentencing

claims Simmons raises on appeal fall within the scope of the

waiver   provision.     See    id.     at    169-70       (holding   that    waiver   of

right    to   appeal   sentence        in    plea    agreement       accepted    before

decision in United States v. Booker, 543 U.S. 220 (2005), was

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not invalidated by change in law).                       Because Simmons’ valid and

enforceable waiver of appellate rights precludes review of the

sentencing issues raised on appeal, we grant the Government’s

motion    to    dismiss       in    part     and    dismiss       this    portion       of    the

appeal.

               The   waiver      provision,        however,       only    waived     Simmons’

right to appeal his sentence.                   Defense counsel does not assert

any    errors    related       to     Simmons’      guilty       plea     or     convictions.

However, counsel correctly notes in the response to the motion

to dismiss that Simmons’ appeal waiver does not preclude our

review pursuant to Anders.                 In accordance with Anders, we have

thoroughly       examined       the    entire       record        for    any     potentially

meritorious      issues       not    covered       by    the    waiver     and    have    found

none.     The court fully complied with the mandates of Rule 11 in

accepting Simmons’ guilty plea and ensured that the plea was

entered    knowingly          and    voluntarily         and     was     supported       by    an

independent factual basis.                 See United States v. DeFusco, 949

F.2d    114,    116,    119-20      (4th     Cir.       1991).      Thus,      we   deny      the

Government’s         motion    to     dismiss      in     part    and     affirm    Simmons’

convictions.

               Thus, the Government’s motion to dismiss is granted in

part and denied in part, Simmons’ appeal of his sentence is

dismissed,       and    his      convictions        are        affirmed.         This     court

requires    that       counsel      inform    his       client,    in    writing,       of    his

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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   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




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