                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5274



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOHNNY RAY MALONE, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (5:06-cr-00072-FL)


Submitted:   September 28, 2007           Decided:   October 12, 2007


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Johnny Ray Malone pled guilty to possession with the

intent to distribute marijuana and possession of a firearm by a

convicted felon.            He was sentenced within his advisory Guideline

range to 57 months in prison.              On appeal, his attorney has filed an

Anders* brief, noting that, because Malone waived the right to

appeal in his plea agreement, there were no meritorious issues on

appeal. Nonetheless, the brief questions whether Malone’s sentence

was reasonable.            Although informed of his right to do so, Malone

has not filed a pro se supplemental brief.                 The Government has

moved to dismiss the appeal based on the waiver.                   We grant the

motion in part and dismiss the appeal with regard to the issue

raised in Malone’s brief.                 After a review of the record under

Anders, we affirm Malone’s convictions and sentence.

               A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C.A. § 3742 (West 2000 & Supp. 2007).

United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                    Any

such waiver must be made by a knowing and intelligent decision to

forgo the right to appeal.                United States v. Broughton-Jones, 71

F.3d       1143,    1146    (4th   Cir.    1995).   Whether   a   defendant   has

effectively waived his right to appeal is an issue of law we review

de novo.           United States v. Marin, 961 F.2d 493, 496 (4th Cir.

1992).


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

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            To the extent Malone is appealing the reasonableness of

his sentence, we grant the Government’s motion to dismiss.          The

district court’s plea colloquy was thorough and conformed to the

dictates of Fed. R. Crim. P. 11.             Moreover, Malone does not

challenge   the   voluntariness   of   his   waiver.    Because   Malone

knowingly and voluntarily entered into the plea agreement and the

waiver was reviewed at the plea hearing, the waiver is enforceable.

            The waiver expressly precluded Malone from appealing any

sentence that was either within or below the advisory Guideline

range. Because the sentence imposed was within the advisory range,

any challenge to the district court’s sentence, including Malone’s

claims that his sentence was unreasonable, falls within the scope

of that waiver.     As such, we grant the Government’s motion to

dismiss Malone’s appeal as to the claim raised in Malone’s brief.

            However, the waiver’s enforceability does not completely

dispose of this appeal.       Our interpretation of Malone’s plea

agreement is guided by contract law. United States v. McQueen, 108

F.3d 64, 66 (4th Cir. 1997).           The appellate waiver expressly

permitted an appeal based upon ineffective assistance of counsel or

prosecutorial misconduct not known to Malone at the time of his

guilty plea.   Accordingly, the waiver provision does not foreclose

Malone’s right to appeal with respect to these issues.      See United

States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993).        As such, we




                                  - 3 -
deny    the     Government’s    motion    as    it   relates   to   ineffective

assistance or prosecutorial misconduct.

               Though Malone does not raise a specific challenge based

on either of these issues, pursuant to Anders, we must review the

record for any meritorious issues.             In accordance with Anders, we

have reviewed the entire record and found no viable claims of

ineffective assistance of counsel or prosecutorial misconduct that

are    clear    from   the   record.     Accordingly,    we    affirm   Malone’s

convictions and sentence.

               This court requires that counsel inform his client, in

writing, of his 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 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.



                                                           DISMISSED IN PART;
                                                             AFFIRMED IN PART




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