                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7937


UNITED STATES OF AMERICA,

                Plaintiff – Appellant,

          v.

MICHAEL LEONARD WOODARD, JR.,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:10-cr-00191-BO-1; 5:12-cv-00106-BO)


Submitted:   May 21, 2013                  Decided:     June 6, 2013


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas   G.  Walker,   United   States   Attorney,  Jennifer P.
May-Parker, Ethan A. Ontjes, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellant. Thomas P. McNamara,
Federal Public Defender, Devon L. Donahue, Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Michael    Woodard       pleaded        guilty    to    possession       with

intent to distribute marijuana and MDMA (ecstasy), in violation

of 21 U.S.C. § 841(a) (2006), and possession of a firearm in

furtherance of a drug trafficking offense, in violation of 18

U.S.C. § 924(c) (2006).          The district court originally sentenced

Woodard to 180 months of imprisonment.                        Woodard appealed, and

appellate     counsel     filed       a     brief       pursuant      to     Anders     v.

California,     386     U.S.    738       (1967),      questioning          whether    the

district     court    erred    in    finding         that   Woodard    was     a   career

offender.      We    affirmed       Woodard’s        conviction      but    granted    the

Government’s motion to dismiss Woodard’s appeal of his sentence

based on the appellate waiver.                   See United States v. Woodard,

450 F. App’x 310 (4th Cir. 2011) (unpublished).

             Woodard then filed a 28 U.S.C.A. § 2255 (West Supp.

2012) motion, again arguing that he did not qualify as a career

offender,    citing     this    court’s         decision      in    United    States    v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).                            The district

court granted Woodard’s motion, finding that this issue fell

outside the scope of the waiver of collateral review and that

under Simmons, Woodard no longer qualified as a career offender.

The district court then resentenced Woodard to a total of 101

months of imprisonment.              The Government now appeals, arguing

that   the   district    court      erred       in   concluding      that    the   career

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offender issue was outside the scope of the appellate waiver and

that such a claim is not cognizable on collateral review unless

a defendant is actually innocent of the underlying offenses.

              We review the validity of an appeal waiver de novo.

United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).                                We

will   enforce    an    appeal       waiver      to    preclude     a   defendant       from

raising an issue if the waiver is valid and the issue on appeal

is   within    the     scope    of    the    waiver.         Id.;    see   also      United

States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) (defendant

may waive the right to collaterally attack his conviction and

sentence as long as the waiver is knowing and voluntary).                                 We

have   thoroughly       reviewed      the     record      and     conclude      that     the

district court erred in concluding that Woodard’s claim fell

outside   the    scope    of    his    appellate         waiver.        This    court    has

already   determined      on    direct       appeal      that    Woodard’s      appellate

waiver was knowing and voluntary, and that the Simmons issue

fell   within    the    scope    of    the       appellate      waiver.        See   United

States    v.     Woodard,       450     F.       App’x     310      (4th   Cir.        2011)

(unpublished); see also Lemaster, 403 F.3d at 220 n.2 (“[W]e see

no reason to distinguish between waivers of direct-appeal rights

and waivers of collateral-attack rights.”).

              Moreover, we conclude that this claim is not the type

of issue that Woodard could not have reasonably contemplated at

the time of his plea agreement.                       See Blick, 408 F.3d at 172

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(claims that the district court erred in calculating the loss

amount under the Guidelines and that the sentencing enhancements

under the Guidelines violated the subsequently-decided opinion

in United States v. Booker, 543 U.S. 220 (2005), did not fall

outside    the   scope    of    the    appellate     waiver).      Finally,   our

unpublished decision in United States v. Yancey, 463 F. App’x

202, 203 (4th Cir. 2012) (unpublished), is inapplicable to this

appeal as the government there conceded at sentencing that the

defendant could appeal his classification as a career offender.

            Accordingly,        we    vacate   the   district     court’s   order

granting    Woodard’s     § 2255       motion,   vacate     the   sentence,   and

remand with instructions to enter the original judgment.                       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.


                                                          VACATED AND REMANDED




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