UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4694

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLIAM H. HART,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. David A. Faber, Chief

District Judge. (CR-03-77)

Submitted: March 20, 2006 Decided: April 20, 2006

Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

William C. Forbes, Charleston, West Virginia, for Appellant.

Alberto R. Gonzales, United States Attorney General, Randolph J.

Bernard, Robert H. McWilliams, Jr., Special Attorneys to the United

States Attorney General, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

William H. Hart pled guilty to theft/embezzlement of

United States property not in excess of $1,000, in violation of 18

U.S.C. § 641 (2000). The district court sentenced Hart to five

years of probation, as a condition of which he would serve a sixmonth term of home confinement, and to pay restitution of $3,000.

Hart appeals his sentence, arguing that his sentence was enhanced

in violation of his Sixth Amendment rights under United States v.

Booker, 543 U.S. 220 (2005).

The Government asserts that Hart validly waived the right

to appeal his sentence in the plea agreement. A defendant may

waive the right to appeal if that waiver is knowing and

intelligent. United States v. Blick, 408 F.3d 162, 169 (4th Cir.

2005). Generally, if the district court fully questions a

defendant regarding the waiver of his right to appeal during the

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

enforceable. United States v. Wessells, 936 F.2d 165, 167-68 (4th

Cir. 1991); United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir.

1990). A waiver of appeal does not prohibit the appeal of a

sentence imposed in excess of the statutory maximum, a sentence

based on a constitutionally impermissible factor such as race,

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

proceedings conducted in violation of the Sixth Amendment right to
- 3 -

counsel following the entry of the guilty plea. United States v.

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

Our review of the record leads us to conclude that Hart

knowingly and voluntarily waived the right to appeal his sentence.

See Blick, 408 F.3d at 169-73 (holding that plea agreement waiver

of right to appeal that district court accepted prior to Booker was

not invalidated by change in law effected by that decision).

Moreover, the challenges raised on appeal fall within the scope of

the waiver. Accordingly, we dismiss Hart’s appeal. 

We note, however, a clerical error in Hart’s criminal

judgment. The Government charged Hart with theft/embezzlement of

United States property not in excess of $1,000, in violation of 18

U.S.C. § 641 (2000). This is also the charge listed in the plea

agreement. Although the judgment correctly describes the offense

as theft/embezzlement of United States property not in excess of

$1,000, it inaccurately lists the statutory violation as 8 U.S.C.

§ 641 rather than 18 U.S.C. § 641. We request that the clerk of

the district court correct this typographical error. See Fed. R.

Crim. P. 36. 

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