UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4878

ERIC WILSON LEE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-97-214-A)

Submitted: May 26, 1998

Decided: June 23, 1998

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

John Kenneth Zwerling, Joel B. Simberg, ZWERLING & KEMLER,

P.C., Alexandria, Virginia, for Appellant. Helen F. Fahey, United

States Attorney, W. Neil Hammerstrom, Jr., Assistant United States

Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Appellant Eric Wilson Lee appeals imposition of a 210-month sentence following his guilty plea pursuant to a plea agreement to conspiracy to distribute crack cocaine. Because we find that Lee

knowingly waived his appellate rights in a voluntary plea agreement,

we dismiss this appeal.

Lee does not dispute that his plea agreement stated that "the defendant knowingly waives the right to appeal any sentence within the

maximum provided in the statute of conviction (or the manner in

which that sentence was determined) . . . on any ground whatever, in

exchange for the concessions made by the United States in this plea

agreement." Nor has Lee asserted any claim that his guilty plea was

unknowing or involuntary. The court conducted a thorough hearing

under Fed. R. Crim. P. 11 and specifically noted that Lee was waiving

his right to appeal his sentence. The court eventually sentenced Lee

at the bottom of his guidelines range.

Nonetheless, the sentencing court stated at the sentencing hearing

that it "relieved" Lee of that part of the plea agreement with the Government which "bound [him] not to appeal his sentence." The court

overruled the Government's objection to this action. We vacate the

district court's order "relieving" Lee of the waiver of appellate review

portion of his plea agreement and dismiss the appeal.

There is no provision in Fed. R. Crim. P. 11 for a court to modify

a plea agreement. When parties reach a plea agreement, the court

"may accept or reject the agreement, or may defer its decision as to

the acceptance or rejection until there has been an opportunity to consider the presentence report." Fed. R. Crim. P. 11(e)(2). Once the

court has accepted a plea agreement, it is generally bound by the

terms of that agreement. See United States v. Ritsema, 89 F.3d 392,

399 (7th Cir. 1996) (citations omitted). Though some courts have recognized that approval of a plea agreement might later be rescinded

based on the defendant's fraud upon the court, see id. at 400, we have

no such allegation in this case. A defendant may, as part of his plea

agreement, validly waive his right to appeal his guidelines sentence

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if such waiver is knowing and intelligent. See United States v.

Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995).

It is undisputed that the waiver of appellate rights in Lee's plea

agreement is valid. Once the district court accepted the plea agreement, it was without authority to modify it. We therefore vacate the

district court's order "relieving" Lee of his appellate waiver and dismiss this appeal pursuant to the terms of his 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

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