UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5219

HENRY LOFI SOLOMON,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

M. J. Garbis, District Judge.

(CR-92-214-MJG)

Submitted: June 28, 1996

Decided: July 22, 1996

Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

G. Godwin Oyewole, Washington, D.C., for Appellant. Lynne A. Battaglia, United States Attorney, Bonnie S. Greenberg, Assistant United

States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Henry Lofi Solomon entered a guilty plea to conspiracy to import

450 grams of heroin, 21 U.S.C.A. §§ 952(a), 960 (West 1981 & Supp.

1996). He received the mandatory minimum sentence of 60 months.

In his plea agreement, Solomon agreed to waive his right to appeal

whatever sentence was imposed, reserving only the right to appeal

from an upward departure from the guideline range or a sentence in

excess of the statutory maximum. Solomon now seeks to appeal his

sentence, arguing that the district court erred in failing to sentence

him below the mandatory minimum under USSG § 5C1.2.1 We dismiss the appeal.

During the Fed. R. Crim. P. 11 hearing, the government briefly

summarized the plea agreement, including the waiver provision. After

the summary, in response to questions from the district court, both

Solomon and his attorney agreed that the summary was accurate, and

Solomon stated that he wished to enter into the agreement. He stated

that no promises had been made to him apart from those in the plea

agreement. A defendant may waive his statutory right to appeal his

sentence if the waiver is knowing and voluntary. United States v.

Marin, 961 F.2d 493, 496 (4th Cir. 1992). For a waiver to be knowing

and voluntary, the district court should specifically question the

defendant about the waiver provision before accepting his plea. However, in the absence of such questioning, the record may otherwise

disclose that the defendant understood the significance of the waiver.

Id. Whether the waiver is effective is a legal question reviewed de

novo. Id.

In a pro se "Response to Government's Brief," Solomon asserts

that he did not voluntarily waive his appeal right. He states that he

objected to the waiver provision when his attorney discussed it with

him just before the plea hearing and that, after consultation with the

government, his attorney assured him that he could ignore the waiver

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1 United States Sentencing Commission, Guidelines Manual (Nov.

1994). The criteria set out in the guideline are identical to those in 18

U.S.C.A. § 3553(f) (West Supp. 1996).

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because he would not lose his right to appeal his sentence. These representations are at odds with Solomon's statements during the plea

hearing. After the waiver provision was read to him, Solomon, who

has a college degree and ran his own business in Nigeria, said he

wished to enter into the plea agreement. He said that he had been

promised nothing further and that he had no questions to ask the court

before the plea was accepted. On balance, we find that the waiver was

knowingly and voluntarily made.

We therefore dismiss the appeal.2 Solomon's motion for leave to

submit a pro se supplemental brief and response to the government's

brief is granted. 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

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2 Had we found that the waiver was ineffective, we would affirm the

sentence. Under United States v. Ivester, 75 F.3d 182, 185-86 (4th Cir.

1996), more than willingness to cooperate is required for compliance

with USSG § 5C1.2(5).

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