                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4626



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOSE ANTONIO NIEVES, a/k/a Antonio Perez,

                                            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-03-42)


Submitted: April 29, 2004                      Decided:   May 3, 2004


Before LUTTIG, WILLIAMS, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Robert
A.J. Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

               Jose Antonio Nieves pled guilty to possession of 422.8

grams    of    cocaine   base   (crack)    with   intent    to    distribute,     21

U.S.C.A. § 841(a), (b)(1)(A) (West 1999 & Supp. 2003) (Count One),

and to possession of a firearm in furtherance of a drug trafficking

crime,    18    U.S.C.   §   924(c)(1)(A)    (2000).       His    plea    agreement

provided that he waived his right to appeal his sentence “on any

ground, including any appeal right conferred by Title 18, United

States    Code,     Section     3742(a),”     excepting      only        claims   of

prosecutorial misconduct, ineffective assistance of counsel, a

sentence in excess of the statutory maximum, and a sentence based

on an unconstitutional factor.            Nieves was sentenced to a term of

235 months imprisonment for the drug offense and a consecutive

five-year term for the § 924(c) offense.               He now seeks to appeal

his   sentence,      contending    that     the   district       court    erred   in

determining the amount of crack for which he was responsible.

Based on Nieves’ waiver of his appeal right, we dismiss the appeal.

               A defendant may waive his right to appeal if the waiver

is knowing and voluntary.         United States v. Brown, 232 F.3d 399,

403 (4th Cir. 2000); United States v. Marin, 961 F.2d 493, 496 (4th

Cir. 1992).      The record here discloses that Nieves’ waiver of his

appeal right was knowing and voluntary.           He does not claim that any

of the exceptions apply.




                                     - 2 -
          We therefore dismiss the 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




                              - 3 -
