                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4741


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

VAN SON THAI, a/k/a Son Tau, a/k/a Thai Son,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Anthony John Trenga,
District Judge. (1:09-cr-00408-AJT-2)


Submitted:   March 24, 2011                 Decided:   March 31, 2011


Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Rebecca S. Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia, for
Appellant. Kimberly Riley Pederson, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Van Son Thai pled guilty, pursuant to a written plea

agreement,      to   one   count    of    conspiracy       to   affect     commerce    by

robbery, in violation of 18 U.S.C. § 1951 (2006), and one count

of use of firearms during a crime of violence, in violation of

18 U.S.C. § 924(c) (2006).            The district court sentenced Thai to

120 months’ imprisonment, which consisted of thirty-six months

on the conspiracy count and eighty-four months on the firearms

count, running consecutively.              Thai timely appealed.            On appeal,

Thai first argues that count one of the superseding indictment

failed     to     allege     sufficient          facts    to      establish      federal

jurisdiction and accordingly should have been dismissed.                           Thai

also argues that the district court erred at sentencing because

it considered two additional robberies not identified in the

statement of facts and because the court failed to find that

Thai     had    committed     the    two    additional          robberies     beyond   a

reasonable doubt.          In response, the Government filed a motion to

dismiss, relying on Thai’s appeal waiver.                         We agree with the

Government’s position and dismiss Thai’s appeal.

               It is well-settled that “a defendant may waive in a

valid    plea     agreement    the       right    of     appeal    under    18   U.S.C.

§ 3742.”        United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.

1990).     “Whether a defendant has effectively waived the right to

appeal is an issue of law that [this court] review[s] de novo.”

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

undertaking that review, this court will enforce an appellate

waiver where such a waiver “is knowing and intelligent and the

issue sought to be appealed falls within the scope of the appeal

waiver.”     United States v. Poindexter, 492 F.3d 263, 270 (4th

Cir. 2007).     An appellate waiver is generally considered to be

knowing and intelligent where the court specifically questioned

the defendant regarding the waiver during the Rule 11 colloquy

and   the   record   indicates    that   the   defendant   understood   the

significance of the waiver.        United States v. Johnson, 410 F.3d

137, 151 (4th Cir. 2005).        Our review of the record leads us to

conclude that Thai knowingly and voluntarily waived the right to

appeal his conviction and sentence.

            Only a “narrow class of claims involves errors that

the defendant could not have reasonably contemplated when the

plea agreement was executed,” and therefore are excluded from

the scope of the waiver.         Poindexter, 492 F.3d at 270 (internal

quotation marks omitted).        For example, claims that proceedings

following the guilty plea were conducted in violation of the

defendant’s Sixth Amendment right to counsel, United States v.

Attar, 38 F.3d 727, 732-33 (4th Cir. 1994), or that a sentence

was imposed in excess of the statutory maximum penalty “or based

on a constitutionally impermissible factor such as race,” United



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

the narrow category of claims excluded from an appellate waiver.

           Thai first argues that count one of the superseding

indictment     failed    to     allege     sufficient         facts    to     establish

federal    jurisdiction,        and    thus,      the      district    court       lacked

subject      matter     jurisdiction.                Because        subject        matter

jurisdiction       involves   the     power    of   a   court    to    hear    a     case,

claims that a court lacked jurisdiction are not barred by an

appellate waiver.        See United States v. Cotton, 535 U.S. 625,

630 (2002) (subject matter jurisdiction cannot be forfeited or

waived).     However, the Supreme Court also established in Cotton

that   a   defective     indictment        does      not    deprive     a     court       of

jurisdiction.         Id.     at    631.        Thus,      Thai’s     claim     is        not

jurisdictional, but “goes only to the merits of the case,” and

is therefore barred by his appeal waiver.                   Id. (quoting Lamar v.

United States, 240 U.S. 60, 65 (1916)).

           Thai’s second claim, that the district court erred in

imposing     his    sentence,      does    not      rise    to   the    level        of    a

“reasonably unforeseeable” constitutional violation, but rather

constitutes a routine challenge to the procedural reasonableness

of his sentence.         Therefore, this claim falls squarely within

the scope of the appellate waiver.                   Accordingly we grant the

Government’s motion to dismiss.                We dispense with oral argument

because the facts and legal contentions are adequately presented

                                           4
in the materials before the court and argument would not aid the

decisional process.

                                                       DISMISSED




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