                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4629


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAVON TYSHAUN BAKER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00030-BO-1)


Submitted:   April 28, 2014                   Decided:   May 20, 2014


Before KING, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. H. Paramore, III, W.H. PARAMORE, III, P.C., Jacksonville,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Javon     Tyshaun     Baker   pleaded        guilty       pursuant    to   a   plea

agreement to one count of possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1), and possession

of    firearms    in   furtherance        of    a   drug    trafficking       crime,    in

violation of 18 U.S.C. § 924(c)(1)(A)(i).                    Baker challenges only

his    firearms     conviction       on   appeal.           He    asserts     that    this

conviction should be vacated because, at the Rule 11 hearing,

the    district     court:     (1)    failed        to     adequately       explain    the

appellate waiver in his plea agreement; and (2) did not require

a    factual   basis    to    show    that      Baker      possessed    firearms       “in

furtherance” of a drug trafficking crime.                    We affirm.



                                           I.

       A defendant may waive his appellate rights pursuant to a

plea agreement, and we have consistently upheld the validity of

appellate waivers.           See, e.g., United States v. Manigan, 592

F.3d 621, 627 (4th Cir. 2010).                  A valid appellate waiver will

preclude the appeal of an issue that falls within the scope of

the waiver.       United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).    Whether a defendant validly waived his right to appeal

is a question of law that we review de novo.                      Id.




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       Our     independent         review       of     the      record      supports         the

conclusion that Baker voluntarily and knowingly waived his right

to appeal his firearms conviction.                     The district court properly

determined that Baker was competent and that he entered his plea

voluntarily.         Baker stated that he fully discussed the case with

his     attorney          and     was      satisfied          with       the     attorney’s

representation.           The district court specifically discussed the

appellate waiver contained in Baker’s plea agreement, and Baker

confirmed the accuracy of the court’s description.                                    Thus, we

conclude      that    the   district          court    substantially        complied         with

Rule    11    requirements,        and    the       appellate      waiver   is       valid   and

enforceable.

                                               II.

       Baker contends nonetheless that the appellate waiver does

not foreclose his claim that the government did not proffer a

sufficient      factual         basis    to    support       his    plea    of   guilty       to

possessing firearms in furtherance of a drug trafficking crime.

We acknowledge some uncertainty in this circuit about whether a

defendant      may    waive      the    Rule    11    requirement      that      a    district

court determine whether there is a sufficient factual basis for

the defendant’s plea.                  Compare United States v. Bell, 359 F.

App’x    442,       444   (4th    Cir.     2010)      (unpublished)         (suggesting        a

defendant can challenge whether there was a factual basis for

his    plea    on    appeal      notwithstanding         a    valid    appellate        waiver

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because the challenge attacks the validity of the plea itself),

with United States v. Carter, 267 F. App’x 203, 203 (4th Cir.

2008)       (unpublished)       (concluding          that   a   valid    and   enforceable

appellate       waiver        foreclosed            defendant’s      appeal     that    the

government’s proffer at the Rule 11 hearing was inadequate).

       Rather     than       rely   on    waiver      here,     we   choose    to   resolve

Baker’s argument that his plea to the firearms conviction was

not knowing and voluntary on the merits.                             Based on a careful

review of the record, we conclude the district court complied

with    Rule    11,     as    there      was    a    sufficient      factual    basis   for

Baker’s plea.

       “Federal Rule of Criminal Procedure 11(b)(3) requires the

district       court    to     determine        whether     a    factual    basis    exists

before entering judgment on a guilty plea.”                             United States v.

Ketchum, 550 F.3d 363, 366 (4th Cir. 2008).                          It is well settled,

however, that in determining the existence of a factual basis

for     a     guilty     plea,       “the       district        court    possesses      wide

discretion,       and    it    need      only    be    subjectively        satisfied    that

there is a sufficient factual basis for a conclusion that the

defendant committed all of the elements of the offense.”                                 Id.

(internal quotation marks omitted).

       To sustain a conviction under the second prong of § 924(c),

the     government       must       present      evidence       “indicating     that     the

possession of a firearm furthered, advanced, or helped forward a

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drug trafficking crime.”                United States v. Lomax, 293 F.3d 701,

705 (4th Cir. 2002).             Whether a firearm served such a purpose is

a     question      of     fact.         Id.           When     making     this       factual

determination, the factfinder may consider:                          “the type of drug

activity that is being conducted, accessibility of the firearm,

the type of weapon, whether the weapon is stolen, the status of

the    possession        (legitimate      or        illegal),    whether       the    gun   is

loaded, proximity to drugs or drug profits, and the time and

circumstances       under       which    the    gun    is     found.”      Id.    (internal

quotation marks omitted).                 Moreover, possession may be either

actual or constructive.                See United States v. Maldonado-Garcia,

446 F.3d 227, 231 (1st Cir. 2006); United States v. Bailey, 329

F. App’x 439, 441 (4th Cir. 2009) (unpublished).

       In   this     case,        the     government’s          proffer        showed     that

investigators searching Baker’s home found significant amounts

of marijuana; a marijuana grinder; a digital scale; two loaded

handguns,     one        with     an    obliterated         serial      number;       seventy

additional rounds of ammunition; $683 in cash; and video camera

surveillance equipment.                 The loaded .32 caliber revolver was

located     under    the    living       room       couch   cushion;      additional        .32

caliber     ammunition          was    found    in    the     dresser     in    the     master

bedroom;     the    loaded       Glock    .45       caliber     pistol--which         had   no

serial number because it had been removed--was found under the

pillow in the master bedroom; .45 caliber ammunition was found

                                                5
in the dresser in the master bedroom; and $675 in cash and a

letter addressed to Baker were both located in the bedroom.

       In addition, the marijuana was not confined to one area of

the house.       Indeed, it was found “throughout the house” in the

living room, kitchen, and master bedroom, as were the firearms

and ammunition.         J.A. 23.       Baker admitted to ownership of the

firearms and to selling the marijuana and, as the government

argued, the video camera allowed Baker to monitor anyone who was

approaching his residence, including law enforcement.

       These facts were more than sufficient to show that Baker

possessed       the   firearms    to    “further[],    advance[],      or    help[]

forward” his marijuana trafficking activities.                 United States v.

Robinson, 627 F.3d 941, 955 (4th Cir. 2010). *                 Thus, it was not

error for the district court to accept Baker’s plea.

       We affirm the district court’s judgment.                We dispense with

oral       argument   because    the    facts   and   legal    contentions      are

adequately      presented   in    the    materials    before    this   court    and

argument would not aid in the decisional process.

                                                                            AFFIRMED




       *
       Although Baker cites to this court’s unpublished opinion
in United States v. Benson, 63 F. App’x 88 (4th Cir. 2003), we
find the case inapposite. The evidence the government proffered
at the Rule 11 hearing in this case far exceeded the evidence at
issue in Benson.



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