                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5266



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


MELVIN PAUL GARRIS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (4:06-cr-00016-FL)


Submitted:   February 4, 2008          Decided:     February 15, 2008


Before TRAXLER, KING, and SHEDD, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Melvin P. Garris appeals from his 324-month sentence for

mail fraud, in violation of 18 U.S.C. § 1341 (2000) (Count 3), wire

fraud, in violation of 18 U.S.C. § 1343 (2000) (Count 41), making

fraudulent statements in obtaining federal employee compensation,

in violation of 18 U.S.C. § 1920 (2000) (Count 44), and possession

with intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841 (2000) (Count 47).         On appeal, Garris contends that the

district court erred in determining his base offense level as to

Count 47, as there was no evidence produced at the sentencing

hearing   to   support   the   quantity   of   drugs    calculated   by   the

probation officer in the presentence report.           Garris asserts that

the court further erred by enhancing his sentence based on facts

that were neither admitted by him nor found by a jury beyond a

reasonable doubt, resulting in a 324-month term of imprisonment

that was in excess of the statutory maximum of twenty years.              In

response, the Government contends that Garris’ claims relating to

the establishment of his sentencing guidelines range are barred by

the appellate waiver in his plea agreement.            As for Garris’ claim

that his sentence exceeded the statutory maximum, the Government

concedes that this claim is not precluded by the appellate waiver,

but asserts that it is without merit.          Upon review of the record,

we dismiss Garris’ claims regarding determination of his sentencing

guidelines range and affirm his sentence.


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           Pursuant to a plea agreement, a defendant may waive his

appellate rights under 18 U.S.C. § 3742 (2000).    United States v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).   Whether a defendant has

waived his right to appeal is an issue of law subject to de novo

review.   United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

A waiver will preclude appeal of a specific issue if the record

establishes that the waiver is valid and that the issue is within

the scope of that waiver.    United States v. Attar, 38 F.3d 727,

731-33 (4th Cir. 1994); cf. United States v. Blick, 408 F.3d 162,

171 (4th Cir. 2005) (refusing to enforce waiver for a “narrow class

of claims” that are not within the scope of the waiver).

           Garris claims there was insufficient evidence for the

district court to determine the amount of drugs for which he was

held responsible.   Garris notes that the plea agreement contained

no stipulated drug amount, that he made no relevant admissions at

the plea hearing, and that there was no evidence presented by the

Government at the sentencing hearing.       However, this claim is

squarely within the scope of the appellate waiver, as Garris waived

the right to appeal “whatever sentence is imposed, including any

issues that relate to the establishment of the advisory Guidelines

range,” as he reserved only the right to appeal from a sentence in

excess of the advisory guidelines range.     See Attar, 38 F.3d at

731-33.   Garris was sentenced to 324 months’ incarceration, which




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was at the bottom of the calculated guidelines range. Accordingly,

Garris’ claim is barred by the appellate waiver.

            Garris’ next claim is that the district court violated

his Sixth Amendment rights by enhancing his sentence based on facts

that were not admitted by him nor determined by a jury beyond a

reasonable doubt.        While Garris seemingly raises a claim under

United States v. Booker, 543 U.S. 220 (2005), his appellate waiver

bars any claims that “relate to the establishment of the advisory

Guidelines range.”       Therefore, Garris’ claim that his guidelines

range was calculated in violation of Booker is clearly encompassed

within the broad scope of the appellate waiver.              See Blick, 408

F.3d   at   168-170    (claims   pursuant   to    Booker   are   subsumed   by

appellate waiver).       However, Garris also asserts that the factual

determinations made by the district court resulted in a sentence

that was in excess of the statutory maximum of twenty years.

Garris’ appellate waiver does not bar him from challenging his

sentence if it was imposed in violation of the maximum penalty

provided by statute.       See United States v. Johnson, 410 F.3d 137,

151 (4th Cir. 2005).      Because Garris failed to raise this specific

objection to his sentence before the district court, his claim is

reviewed for plain error.          See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).

            While     Garris   asserts   that    he   believed   his   maximum

exposure in pleading guilty was limited by statute to a term of


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twenty years, his claim is without merit.     Regarding Counts Three,

Forty-One, and Forty-Seven, Garris’ plea agreement noted that the

statutory maximum term for each individual count was twenty years’

incarceration.*    Garris’ sentence did not exceed the statutory

maximum on any of the individual counts, as the district court

sentenced Garris to a term of 240 months on Counts 3 and 41, to be

served concurrently, a term of sixty months on Count 44, to be

served concurrently, and a term of 240 months on Count 47, of which

eighty-four months were to run consecutively to the other counts.

           While the total term of imprisonment of 324 months was

greater than twenty years, this was due to the impact of U.S.

Sentencing Guidelines Manual § 5G1.2(d) (2006), which states that

if the highest statutory maximum is lower than the total punishment

under    the   Guidelines,   the   court   shall   run   the   sentences

consecutively “to the extent necessary to produce a combined

sentence equal to the total punishment.” Thus, Garris’ sentence of

324 months was not in excess of the statutory maximum on any one

count, but rather was the result of part of the sentence for Count

47 being run consecutively to the other counts.      Therefore, Garris




     *
      On Count Forty-Seven, the plea agreement erroneously stated
that the maximum term of imprisonment for unlawful distribution of
a controlled substance was thirty years. However, the probation
officer identified this error and correctly noted in the
presentence report that the maximum term was twenty years.
Furthermore, the district court notified Garris of the correct
maximum term at his sentencing hearing.

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was appropriately sentenced within the maximum penalties provided

by statute as to each count.

              Accordingly,   we      dismiss    Garris’     claims      regarding

determination of his sentencing guidelines range while otherwise

affirming his sentence. 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 IN PART;
                                                             AFFIRMED IN PART




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