                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4091



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RONALD GRAY SPEAKS,

                                            Defendant - Appellant.



Appeal from the United States District      Court for the Middle
District of North Carolina, at Durham.       James A. Beaty, Jr.,
District Judge. (CR-04-262)


Submitted:   November 30, 2006         Decided:     December 28, 2006


Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Randall S.
Galyon, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ronald    Gray   Speaks   pled   guilty   to   conspiracy   to

distribute fifty or more grams of cocaine base, in violation of 21

U.S.C. §§ 841(b)(1)(A), 846 (2000).          Prior to the issuance of

United States v. Booker, 543 U.S. 220 (2005), the district court

sentenced Speaks to 219 months’ imprisonment.              Speaks timely

appealed.     He contends his sentence violates Booker because the

district court sentenced him based on facts not alleged in the

indictment, admitted by Speaks, or found by a jury beyond a

reasonable doubt.     Further, he contends the district court treated

the sentencing guidelines as mandatory, in violation of Booker.

The Government asserts Speaks waived his right to appeal the

sentence by executing a valid and enforceable plea agreement

containing a waiver of appellate rights.       We agree and dismiss the

appeal for that reason.

            In paragraph 5 of his plea agreement, Speaks waived his

right to appeal “the conviction and whatever sentence is imposed.”

A defendant may waive the right to appeal if that waiver is knowing

and intelligent.      United States v. Blick, 408 F.3d 162, 169 (4th

Cir. 2005); United States v. Broughton-Jones, 71 F.3d 1143, 1146

(4th Cir. 1995) (determining whether a waiver is knowing and

intelligent by examining the background, experience, and conduct of

the defendant).      Generally, if the district court fully questions

a defendant regarding the waiver of his right to appeal during the


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Fed. R. Crim. P. 11 colloquy, the waiver is both valid and

enforceable.        United States v. Johnson, 410 F.3d 137, 151 (4th

Cir.), cert. denied, 126 S. Ct. 461 (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 this court reviews de novo.              Blick, 408 F.3d

at 168.

            The district court fully complied with the requirements

of   Rule   11    during   the   plea    colloquy,   and   Speaks’   waiver   of

appellate rights was knowing and intelligent.              Furthermore, a plea

agreement’s appellate waiver accepted prior to Booker is not

invalidated by the Booker decision. Blick, 408 F.3d at 170-73; see

also Johnson, 410 F.3d at 150-52 (rejecting the argument that a

defendant cannot waive the right to an appeal based on subsequent

changes in the law).       We therefore conclude that Speaks’ appellate

waiver is valid and enforceable.

            The appellate waiver contained four exceptions, including

situations in which the sentence was imposed in excess of the

statutory        maximum   or    based     on   an   impermissible     factor.

Furthermore, we have held that a defendant’s valid waiver of his

right to appeal does not prevent “appellate review of a sentence

imposed in excess of the maximum penalty provided by statute or

based on a constitutionally impermissible factor such as race,.”

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


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Speaks, however, was not sentenced above the statutory maximum for

his offense, and he has not alleged his sentence was based on any

impermissible factor recognized by this court. The statutory range

for Speaks’ offense was twenty years to life imprisonment under 21

U.S.C. § 841(b)(1)(A) (2000). Speaks received a sentence below the

statutory minimum by virtue of the Government’s 18 U.S.C. § 3553(e)

(2000)   motion   for   a   downward   departure    in     light   of   Speaks’

substantial assistance.

           We therefore dismiss Speaks’ appeal.             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.



                                                                    DISMISSED




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