                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4737


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEBORAH LEE TIPTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cr-00025-MR-DLH-1)


Submitted:   July 22, 2014                 Decided:   August 5, 2014


Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Frank B. Jackson, F.B. JACKSON & ASSOCIATES LAW FIRM, PLLC,
Hendersonville, North Carolina, for Appellant.           Anne M.
Tompkins, United States Attorney, Melissa L. Rikard, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Deborah     Lee       Tipton       pled       guilty     to    transporting          a

visual        depiction    of        a    minor       engaged     in     sexually        explicit

conduct, in violation of 18 U.S.C. § 2252(a)(1), (b) (2012), and

possessing a visual depiction of a minor engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)

(2012).          She     was     sentenced            to     a   total       of   216        months’

imprisonment.          On appeal, Tipton argues that her sentence is

unreasonable       and     that          the    Government       committed        prosecutorial

misconduct       and   breached           the    plea      agreement.         Relying        on   the

waiver    of     appellate       rights          in   Tipton’s        plea    agreement,          the

Government       urges     the    dismissal           of     Tipton’s    challenge           to   her

sentence.       We affirm in part and dismiss in part.

               Tipton first argues that the Government breached the

plea agreement when it relied on conduct underlying a dismissed

charge of production of child pornography in its argument at

sentencing.        In making its sentencing determinations, a court is

not limited to the facts constituting the offenses of conviction

but     can     consider       any       reliable          evidence    so     long      as    “‘the

defendant [is] given adequate notice of and an opportunity to

rebut or explain [it].’”                  United States v. Bowman, 926 F.2d 380,

381 (4th Cir. 1991) (quoting United States v. Beaulieu, 893 F.2d

1177,    1181     (10th    Cir.          1990)).           Although    the    plea      agreement

required the Government to dismiss the charge of production of

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child pornography, it did not prohibit the Government from using

Tipton’s    acts    of   producing        child    pornography         as    part      of   its

argument at sentencing.              See Santobello v. New York, 404 U.S.

257, 262 (1971); United States v. Fentress, 292 F.2d 461, 464

(4th Cir. 1986).          Therefore, the Government did not breach the

plea agreement.          See United States v. Snow, 234 F.3d 187, 189

(4th Cir. 2000) (stating burden of proof).

            Tipton       also    argues     that       the     Government         committed

prosecutorial       misconduct       by    introducing         certain       evidence       at

sentencing and by making certain allegedly inaccurate factual

statements    in     its     argument.           “To    prevail        on    a    claim      of

prosecutorial misconduct, a defendant must show (1) that the

prosecutor’s remarks and conduct were, in fact, improper and (2)

that such remarks or conduct prejudiced the defendant to such an

extent as to deprive the defendant of a fair trial.”                                   United

States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007).                                    Because

Tipton did not raise her claims of prosecutorial misconduct in

the district court, we review those claims for plain error only.

United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005); see

Henderson    v.    United    States,       133    S.    Ct.   1121,     1126-27        (2013)

(discussing       standard      of   review).          Our    review    of       the    record

reveals no prejudicial misconduct.                 Tipton is therefore entitled

to no relief on her prosecutorial misconduct claims.



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            Finally,     Tipton      argues      that     her    sentence     is

unreasonable.      This claim is barred by the waiver of appellate

rights in her plea agreement.           A defendant may waive the right

to appeal if that waiver is knowing and intelligent and the

issues raised on appeal fall within its scope.               United States v.

Davis, 689 F.3d 349, 354-55 (4th Cir. 2012).                Generally, if the

district court fully questions a defendant regarding the waiver

of her right to appeal during the plea colloquy performed in

accordance with Fed. R. Crim. P. 11, the waiver is both valid

and enforceable.       See United States v. Copeland, 707 F.3d 522,

528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013).

            After our de novo review of the record, see United

States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (stating

standard    of   review),    we    conclude     that    Tipton   knowingly   and

voluntarily waived the right to appeal her sentence on any basis

except     ineffective   assistance        of   counsel     or   prosecutorial

misconduct, and that the magistrate judge fully questioned her

regarding the appeal waiver at the Rule 11 hearing.                 Therefore,

the waiver is valid, and Tipton is barred from challenging the

reasonableness of her sentence.

            Accordingly, we affirm the district court’s judgment

with respect to the claims that the Government breached the plea

agreement    and   engaged    in     prosecutorial       misconduct,   and    we

dismiss Tipton’s appeal of her sentence.                We dispense with oral

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argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                              AFFIRMED IN PART;
                                              DISMISSED IN PART




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