                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4569


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DERRICK SCOTT AYLOR,

                Defendant – Appellant.



                             No. 09-4577


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DERRICK SCOTT AYLOR,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt.   Peter J. Messitte, Senior District
Judge. (8:09-cr-00021-PJM-1; 8:08-cr-00489-PJM-1)


Submitted:   April 1, 2010                 Decided:   April 16, 2010


Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.


A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant.      Jonathan C. Su, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Derrick Scott Aylor pled guilty, pursuant to a written

plea agreement, to two counts of bank robbery, in violation of

18 U.S.C. § 2113(a), (f) (2006).                       The district court calculated

Aylor’s total offense level under the U.S. Sentencing Guidelines

Manual (2008) at 21 and his criminal history in Category IV,

resulting in a Guidelines imprisonment range of 57 to 71 months

on each count.           The district court sentenced Aylor to 71 months’

imprisonment.            Aylor    appeals      and      asserts       on     appeal    that       his

guilty     plea     and     sentence        are        void    because        the     Government

breached      the    plea        agreement      by      failing        to     afford       him    an

opportunity         to      participate           in     a         presentence        debriefing

interview.         The Government moves to dismiss the appeal, arguing

that Aylor’s knowing and voluntary waiver of his right to appeal

his sentence bars this appeal.                  We dismiss in part and affirm in

part.

              A    defendant       may    waive        the    right    to     appeal    if       that

waiver   is       knowing    and    intelligent.               United       States    v.    Amaya-

Portillo,     423     F.3d    427,       430   (4th      Cir.       2005).       To    determine

whether a waiver is knowing and intelligent, this court examines

“the totality of the circumstances, including the experience and

conduct of the accused, as well as the accused’s educational

background         and    familiarity          with          the     terms     of     the        plea

agreement.”          United        States      v.      General,       278     F.3d     389,       400

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(4th Cir. 2002) (internal quotation marks omitted).                        Generally,

if the district court fully questions a defendant at the Fed. R.

Crim. P. 11 proceeding regarding the waiver of his right to

appeal, the waiver is both valid and enforceable.                          See United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).                        However,

an appeal waiver does not bar the appeal of a sentence imposed

in    excess    of   the   statutory    maximum    or     a    challenge      to   the

validity of a guilty plea.             See General, 278 F.3d at 399 n.4.

Nor does it bar an appeal raising issues not within the scope of

the   waiver.        See United   States    v.   Blick,       408   F.3d    162,   168

(4th Cir. 2005).

               Our review of the record leads us to conclude that

Aylor knowingly and voluntarily waived the right to appeal his

sentence * and that the district court fully questioned Aylor

regarding that waiver.        Accordingly, the waiver is valid.

               Aylor claims that the appeal waiver is not enforceable

because the Government breached the plea agreement.                        This court

“will not enforce an otherwise valid appeal waiver against a

defendant       if   the   [G]overnment     breached      the       plea    agreement

containing that waiver.”          United States v. Cohen, 459 F.3d 490,


       *
       Pursuant to the plea agreement’s appeal waiver, Aylor
agreed to waive his right to appeal from any sentence within or
below the advisory Guidelines range resulting from an adjusted
offense level of 21.



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495 (4th Cir. 2006).           The Government breaches the plea agreement

when a promise it made to induce the plea goes unfulfilled.                                 See

Santobello v. New York, 404 U.S. 257, 262 (1971).                            Because Aylor

did not raise this issue in the district court, we review it for

plain error.          See Puckett v. United States, 129 S. Ct. 1423,

1428 (2009).

               Although acknowledging that the written plea agreement

contains no provision obligating the Government to afford him

the     opportunity      to    participate            in    a   presentence        debriefing

interview,      Aylor     claims         that    the       agreement   was       modified   by

statements made during the guilty plea and sentencing hearings.

As a general rule, “integrated written plea agreements are not

open to oral supplementation.”                   United States v. Martin, 25 F.3d

211,     217    n.4    (4th    Cir.       1994).            However,      this    court     has

recognized exceptions to this rule in particular circumstances

where    the    Government         has    made       affirmative      representations        in

open court.           See United States v. Wood, 378 F.3d 342, 349-50

(4th Cir. 2004); Martin, 25 F.3d at 214-17.

               After review of the record, we conclude that the plea

agreement was not orally supplemented to include a provision

requiring      the     Government        to     afford      Aylor   the    opportunity       to

participate in a presentence debriefing interview.                               Accordingly,

the Government did not breach the plea agreement by failing to

afford     Aylor      such    an    interview.              Aylor’s    claim       of   breach

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therefore fails, and the plea agreement and its appeal waiver

are enforceable against Aylor.              Because Aylor’s challenge to his

sentence    falls      within    the       waiver’s     scope,     we     grant     the

Government’s motion to dismiss in part.                 Although Aylor’s appeal

waiver insulates his sentence from appellate review, the waiver

does not preclude our consideration of any challenges to the

validity   of    Aylor’s    conviction.          Consequently,       we     deny    the

motion to dismiss in part.

           Turning, then, to Aylor’s conviction, Aylor claims on

appeal   that    his    guilty      plea    is   void    as    a   result      of   the

Government’s breach of the plea agreement.                    While this claim is

not   barred    by   the   appeal    waiver,     we   conclude     it     is   without

merit.     Accordingly, we affirm Aylor’s conviction and dismiss

the appeal of his sentence.                 We dispense with oral argument

because the facts and legal contentions are adequately expressed

in the materials before the court and argument would not aid the

decisional process.

                                                               DISMISSED IN PART;
                                                                 AFFIRMED IN PART




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