UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4111

EDDIE ANDRIC CORBETT, a/k/a Dreek,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, District Judge.

(CR-95-151-F)

Submitted: February 24, 1998

Decided: March 16, 1998

Before ERVIN and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Richard Luby Cannon, III, Greenville, North Carolina, for Appellant.

Anne Margaret Hayes, OFFICE OF THE UNITED STATES

ATTORNEY, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Eddie Andric Corbett was arrested in 1995 for conspiracy to possess with intent to distribute cocaine base. Corbett entered a plea

agreement with the Government, and cooperated in the investigation

of the conspiracy. The plea was entered on September 6, 1995.

The district court initially sentenced Corbett to 262 months imprisonment, to be followed by five years supervised release. In August

1996, the Government moved for downward departure pursuant to

Fed. R. Crim. P. 35(b). The district court reduced Corbett's sentence

to 192 months. In February 1997, another Rule 35 motion resulted in

a reduction to 168 months. Corbett's notice of appeal followed that

ruling.

Counsel filed this brief pursuant to Anders v. California, 386 U.S.

738 (1967). He alleges that the district court abused its discretion in

failing to sentence Corbett in conformity with similarly situated codefendants who received drastic sentence reductions. He also argues

that Corbett should have been allowed to be present at the Rule 35

hearings.

In both the plea agreement and the plea proceeding, Corbett agreed

to waive any appeal from the sentence, reserving only the right to

appeal from an upward departure by the sentencing judge. A waiver

of appeal provision in a valid plea agreement is enforceable, as long

as it is the result of a knowing and intelligent decision to forgo an

appeal. United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994);

United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether

such a waiver is knowing and intelligent depends"upon the particular

facts and circumstances surrounding [its making], including the background, experience and conduct of the accused." United States v.

Davis, 954 F.2d 182, 186 (4th Cir. 1992) (quoting Johnson v. Zerbst,

304 U.S. 458, 464 (1938)). We review de novo the validity of a

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

Even a valid waiver does not bar appellate review of every sentence,

such as one imposed in excess of the maximum legal penalty or based

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on an impermissible factor such as race. United States v. BroughtonJones, 71 F.3d 1143, 1146-47 (4th Cir. 1995).

We conclude that Corbett's waiver was knowing and voluntary. At

the Rule 11 proceeding, the district court established that Corbett was

twenty-two years old, had been educated through the twelfth grade,

was represented by counsel, and had discussed the charges against

him with his lawyer. The district court specifically mentioned the

appellate waiver when setting out the terms of the plea agreement,

and Corbett agreed that the district court represented the terms correctly. Nothing in the record suggests that Corbett's decision to waive

his appeal rights was not a knowing and intelligent one.

Therefore, we conclude that Corbett's waiver is valid and binding,

and we lack jurisdiction to review the modification of his sentence

under Fed. R. Crim. P. 35(b). 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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