                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4220


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CANDELARIO GONZALEZ-RIVERA, a/k/a Juancho, a/k/a Juan David,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00070-RJC-DSC-1)


Submitted:   March 29, 2012                 Decided:   April 2, 2012


Before WILKINSON, KING, and KEENAN, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam
opinion.


David G. Belser, BELSER & PARKE, P.A., Asheville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Candelario         Gonzalez-Rivera            appeals          the      150-month

sentence       imposed     following       his      guilty    plea       to    conspiracy       to

possess with intent to distribute heroin, in violation of 21

U.S.C.      §§ 841(b)(1)(A),         846    (2006).          In    the    plea        agreement,

Gonzalez-Rivera           agreed     to    waive       his    right       to        appeal     his

conviction         or     sentence       except       for    claims           of     ineffective

assistance of counsel or prosecutorial misconduct.                                  Although the

district court sustained some of Gonzalez-Rivera’s objections to

the presentence report, it varied upward from the Sentencing

Guidelines range of 87 to 108 months’ imprisonment and sentenced

him    to    150     months.        On    appeal,      Gonzalez-Rivera               argues    his

sentence       was      procedurally      and       substantively        unreasonable          and

that     the    Government         committed          prosecutorial            misconduct       by

breaching       the      plea     agreement.           Relying      on        the     waiver    of

appellate       rights       in    Gonzalez-Rivera’s              plea        agreement,       the

Government urges the dismissal of this appeal.                                     We affirm in

part and dismiss in part.

               Gonzalez-Rivera first argues the district court erred

in determining the amount of drugs foreseeable to him and the

resulting Guidelines range.                He further argues the sentence was

substantively unreasonable because the upward variance was not

warranted.         A defendant may waive the right to appeal if that

waiver is knowing and intelligent.                     United States v. Poindexter,

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492 F.3d 263, 270 (4th Cir. 2007).               Generally, if the district

court fully questions a defendant regarding the waiver of his

right to appeal during the plea colloquy performed in accordance

with   Fed.    R.     Crim.   P.   11,    the   waiver    is    both    valid     and

enforceable.        See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).         The question of whether a defendant validly

waived his right to appeal is a question of law that this court

reviews de novo.        United States v. Blick, 408 F.3d 162, 168 (4th

Cir. 2005).

           After reviewing the record, we conclude that Gonzalez-

Rivera knowingly and voluntarily waived the right to appeal his

sentence, except claims of ineffective assistance of counsel or

prosecutorial misconduct, and that the magistrate judge fully

questioned him regarding the appeal waiver at the Fed. R. Crim.

P. 11 hearing.        Accordingly, the waiver is valid and his claims

challenging the reasonableness of his sentence are foreclosed by

that   waiver.        Accordingly,       we   dismiss    this   portion    of     the

appeal.

           Gonzalez-Rivera,        however,      claims    he   is     entitled    to

resentencing because the Government breached the plea agreement

by   failing     to    recommend   a     sentence   at    the   bottom     of     the

Guidelines range.        He suggests the Government’s breach amounted

to prosecutorial misconduct, a claim not barred by the waiver.

Because Gonzalez-Rivera failed to raise this issue before the

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district court, we review for plain error.                         Puckett v. United

States, 556 U.S. 129, 133-34 (2009).                   To prevail on his claim

under this standard, Gonzalez-Rivera must demonstrate “that an

error occurred, that the error was plain, and that the error

affected his substantial rights.”                   United States v. Muhammad,

478 F.3d 247, 249 (4th Cir. 2007).                  He must also establish that

the error “was so obvious and substantial that failure to notice

and    correct        it    affected   the    fairness,      integrity       or    public

reputation       of    the    judicial      proceedings.”          United    States   v.

McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal quotation

marks and alteration omitted).                   The Government was obligated

under the plea agreement not to oppose a sentence at the bottom

of the Guidelines range.               Our review of the record reveals no

breach    of    the        agreement   on    this   basis.         Because    Gonzalez-

Rivera’s prosecutorial misconduct claim is not barred by the

waiver, we affirm in this regard.

               Accordingly, we affirm in part and dismiss in part.

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.



                                                                   AFFIRMED IN PART;
                                                                   DISMISSED IN PART




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