UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4054

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WAVERLY JERMAINE JORDAN, a/k/a Waverley

Jermaine Jordan,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Harrisonburg. Glen E. Conrad, District

Judge. (5:04-cr-00025-gec)

Submitted: March 28, 2007 Decided: April 27, 2007

Before NIEMEYER, TRAXLER, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Cincinnati, Ohio,

for Appellant. John L. Brownlee, United States Attorney, Ray B.

Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a plea agreement, Waverly Jermaine Jordan

pled guilty to conspiracy to distribute fifty grams or more of

crack cocaine (Count 1), in violation of 21 U.S.C. § 846 (2000),

and using, carrying, or possessing a firearm during and in relation

to or in furtherance of a drug trafficking crime (Count 2), in

violation of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2006). The

district court sentenced Jordan to 222 months of imprisonment on

Count 1 and a consecutive sixty-month sentence on Count 2. Jordan

appeals the sentence imposed on Count 1, contending that he did not

receive a full and fair sentencing hearing and that the district

court’s drug quantity and role-in-the-offense determinations were

not supported by a preponderance of the evidence. The Government

asserts that Jordan validly waived the right to appeal his sentence

in the plea agreement. We agree with the Government, grant the

motion to dismiss, and dismiss the appeal.

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). To determine whether a waiver is knowing and

intelligent, we examine 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).
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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. Johnson, 410 F.3d 137, 151 (4th Cir.), cert.

denied, 126 S. Ct. 461 (2005); United States v. Wessells, 936 F.2d

165, 167-68 (4th Cir. 1991). However, an appeal waiver does not

preclude challenges to a sentence on the ground that it exceeds the

statutory maximum or is based on a constitutionally impermissible

factor such as race, appeals from the denial of a motion to

withdraw a guilty plea based on ineffective assistance of counsel,

or claims concerning a violation of the Sixth Amendment right to

counsel in proceedings following the guilty plea. Johnson, 410

F.3d at 151 (citations omitted). The issue of whether a defendant

validly waived his right to appeal is a question of law that we

review de novo. Blick, 408 F.3d at 168.

Jordan challenges the validity of the waiver on the

grounds that he was not informed that he could be sentenced on

uncharged conduct, that he could be sentenced based upon

information he believed was inaccurate, or that he agreed to be

sentenced in accordance with the factors set forth in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2006). However, our review of the

plea agreement and the hearing conducted pursuant to Fed. R. Crim.

P. 11 leads us to conclude that Jordan knowingly and voluntarily

waived his right to appeal. See Johnson, 410 F.3d at 151; General,
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278 F.3d at 400. Jordan next asserts that, even if this court

concludes that the waiver was knowing and voluntary, the court

should not enforce the waiver because he did not receive a full and

fair sentencing hearing. We reject that assertion as belied by the

record and conclude that the claims Jordan raises on appeal fall

within the scope of the valid and enforceable waiver provision. 

Accordingly, we grant the Government’s motion to dismiss

and dismiss the appeal based upon the waiver provision in the plea

agreement. 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