                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7243


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

SHAWN G. HARRIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District   of  West   Virginia,  at  Wheeling.     Frederick P.
Stamp, Jr., Senior District Judge. (5:05-cr-00041-FPS-JES-1)


Submitted:    October 28, 2009              Decided:   November 24, 2009


Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Erik S. Goes, Assistant United
States Attorney, Charleston, West Virginia; John Castle Parr,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Shawn Harris pled guilty to one count of conspiracy to

possess with intent to distribute five grams or more of cocaine

base, in violation of 21 U.S.C.A. §§ 846, 841(b)(1)(B) (2006),

and was sentenced to forty-six months’ imprisonment.                                       He now

appeals.      Harris’ counsel filed a brief pursuant to Anders v.

California,       386   U.S.       738    (1967),          stating     that      there    were    no

meritorious       issues       for       appeal,          but   questioning        whether       the

district court complied with Fed. R. Crim. P. 11 in accepting

Harris’ guilty plea.               Harris was advised of his right to file a

pro se supplemental brief but did not do so.                               The Government has

moved   to   dismiss,         asserting             the   appeal     is    precluded       by    the

waiver of appellate rights in Harris’ plea agreement.                                    We affirm

in part and dismiss in part.

             Pursuant to a plea agreement, a defendant may waive

his appellate rights under 18 U.S.C. § 3742 (2006).                                         United

States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990).                                      A waiver

will preclude appeal of a specific issue if the waiver is valid

and   the    issue      is    within          the    scope      of   the    waiver.         United

States v.     Blick,         408       F.3d    162,       168   (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.

Id. at 168.



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            “The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the

right to appeal.”       Id. at 169.         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 (4th Cir. 2002) (internal

quotation     marks    and    citation        omitted).    Generally,    if    the

district court specifically questions a defendant regarding the

waiver of his right to appeal during the Rule 11 colloquy, the

waiver is both valid and enforceable.               United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,

936 F.2d 165, 167-68 (4th Cir. 1991).

            Harris knowingly and voluntarily waived his right to

appeal any sentence less than 97 months’ imprisonment, and he

does not challenge his sentence in this appeal.                We will enforce

the waiver in our Anders review of the record, however, and

therefore grant the motion to dismiss in part, and dismiss the

appeal to the extent it relates to Harris’ sentence.

            The appellate waiver provision does not preclude our

review   of   the     issue   raised     by    counsel    on   appeal,   and   we

therefore deny the motion to dismiss in part.                  Having reviewed

the record, we conclude that the district court complied with

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Rule   11      in    accepting       Harris’       guilty       plea.      During    the    plea

hearing,       the    district        court    properly         informed     Harris    of    the

rights he was forfeiting as a result of his plea and the nature

of the charges and penalties he faced, found that Harris was

competent       and     entering       his     plea      voluntarily,       and     determined

there was a sufficient factual basis for the plea.                                  Therefore,

the record establishes Harris knowingly and voluntarily entered

into     his        guilty     plea     with       a     full       understanding     of     the

consequences          and    there    was     no       error   in    the   district   court’s

acceptance of his plea.                  We accordingly find no infirmity in

Harris’ conviction.

               As required by Anders, we have reviewed the entire

record and have found no unwaived meritorious issues for appeal.

We therefore affirm the appeal in part and dismiss it in part.

This court requires that counsel inform his client, in writing,

of his right to petition the Supreme Court of the United States

for further review.              If the client requests that a petition be

filed,      but      counsel    believes        that       such      a   petition    would    be

frivolous, then counsel may move in this court for leave to

withdraw from representation.                      Counsel’s motion must state that

a copy thereof was served on the client.                             We dispense with oral

argument because the facts and legal contentions are adequately




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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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