                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4245


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAYTON JARROD DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:11-cr-00057-BO-2)


Submitted:   January 15, 2013             Decided:   January 30, 2013


Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant.    Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Dayton Jarrod Davis appeals his conviction and 188-

month sentence, following his guilty plea, pursuant to a plea

agreement, to conspiracy to distribute and possess with intent

to distribute twenty-eight grams or more of cocaine base, in

violation of 21 U.S.C. § 846 (2006).                        Davis’ counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating      that   there     are    no    meritorious          issues   for    appeal    but

questioning whether the district court erred in sentencing Davis

to    188    months’    imprisonment             based     on    allegedly       incredible

evidence of relevant conduct.                    Davis was informed of his right

to file a pro se supplemental brief, but did not do so.

              Upon our initial review of the appeal, we directed

supplemental        briefing        regarding        whether      the     district    court

failed      to    provide     an    adequate         individualized        assessment      as

required by United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009), and if so, whether such error was harmless.                              Davis filed

a supplemental brief asserting that the district court failed to

provide an adequate individualized assessment and that its error

was    not       harmless,     and        that       his   sentence       therefore       was

procedurally        unreasonable.           The      Government     has    now    moved    to

dismiss, asserting that the appeal is precluded by Davis’ waiver

of    appellate      rights    in     his    plea      agreement.          We    grant    the



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Government’s     motion    in    part,    dismiss      in     part,    and    affirm   in

part.

            A defendant may waive the right to appeal under 18

U.S.C. § 3742 (2006).           United States v. Wiggins, 905 F.2d 51, 53

(4th Cir. 1990).         An appellate waiver must be “the result of a

knowing and intelligent decision to forgo the right to appeal.”

United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.

1995)   (internal      quotation       marks    and    citation        omitted).       We

review de novo whether a defendant has effectively waived the

right to appeal.        United States v. Marin, 961 F.2d 493, 496 (4th

Cir. 1992).

            To      determine     whether       a     waiver     was     knowing       and

intelligent,      we    examine    the    totality       of    the     circumstances,

including     the      defendant’s       experience,        conduct,         educational

background,      and   familiarity       with   the    plea     agreement’s       terms.

United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).

Generally, if a court fully questions a defendant regarding the

appellate waiver during the Rule 11 colloquy, the waiver is both

valid and enforceable.           United States v. Johnson, 410 F.3d 137,

151 (4th Cir. 2005).             However, we will refuse to enforce an

otherwise valid waiver if enforcing the waiver would result in a

miscarriage of justice.          Id.

            Our review of the record leads us to conclude that

Davis knowingly and voluntarily waived the right to appeal his

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sentence.        We further conclude that the issue Davis now asserts

on appeal is within the scope of the waiver.                              Davis waived the

right to appeal his sentence, unless the district court imposed

a     sentence    in     excess       of     the      applicable         Guidelines     range.

Because Davis challenges the reasonableness of his sentence, and

the    district        court    imposed      a    within-Guidelines             sentence,   the

issue Davis seeks to raise on appeal falls squarely within the

scope     of     the     appellate         waiver.          We        therefore    grant    the

Government’s motion to dismiss Davis’ appeal of his sentence.

               The waiver provision, however, does not preclude our

review    of     Davis’        conviction        pursuant        to    Anders.      Prior    to

accepting a guilty plea, the district court must conduct a plea

colloquy in which it informs the defendant of, and determines

that the defendant understands: the nature of the charges to

which he is pleading guilty, any mandatory minimum penalty, the

maximum possible penalty, and the rights he is relinquishing by

pleading guilty.           Fed. R. Crim. P. 11(b)(1); United States v.

DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).                               Additionally, the

district       court     must       ensure       that      the    defendant’s       plea    was

voluntary and supported by a factual basis.                               Fed. R. Crim. P.

11(b)(2),      (3).       Because      Davis         did   not    move     to    withdraw   his

guilty plea in the district court or raise any objections to the

Rule    11     colloquy,       we    review      the       colloquy      for    plain   error.

United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).

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           We find that the district court fully complied with

Rule 11’s requirements, and that Davis’ guilty plea was knowing,

voluntary, and supported by a factual basis.              In accordance with

Anders,    we   have     reviewed    the   record     and     have   found     no

meritorious     issues   for   appeal.     We    therefore      affirm   Davis’

conviction.

           This   court    requires     that    counsel     inform   Davis,   in

writing,   of   his    right   to   petition   the   Supreme    Court    of   the

United States for further review.               If Davis requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, counsel may move in this court for leave to

withdraw from representation.          Counsel’s motion must state that

a copy thereof was served on Davis.                  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 the decisional process.

                                                            DISMISSED IN PART;
                                                              AFFIRMED IN PART




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