UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4060

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EDILVER ROJAS-GOMEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Greenville. Malcolm J. Howard,

Senior District Judge. (7:10-cr-00058-H-1)

Submitted: September 22, 2011 Decided: November 4, 2011

Before WILKINSON, DAVIS, and WYNN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Ronald Cohen, Wilmington, North Carolina, for Appellant. 

Jennifer P. May-Parker, Assistant United States Attorney, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Edilver Rojas-Gomez appeals his conviction, following 

his guilty plea to being a felon in possession of firearms, in 

violation of 18 U.S.C. §§ 922(g)(1), 924 (2006), and the 

seventy-eight-month sentence he received. Rojas-Gomez’s 

attorney filed his appellate brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), averring there are no 

meritorious issues for appeal, but questioning the district 

court’s calculation of Rojas-Gomez’s advisory Guidelines range. 

In his pro se supplemental brief, Rojas-Gomez also challenges 

the calculation of his sentencing range. The Government has 

moved to dismiss the appeal of Rojas-Gomez’s sentence on the 

basis of the waiver of appellate rights contained in RojasGomez’s plea agreement. For the reasons that follow, we grant 

the Government’s motion to dismiss and dismiss the appeal of 

Rojas-Gomez’s sentence, and we affirm his conviction.

We first conclude that Rojas-Gomez has waived his 

right to appeal his sentence. A defendant may, in a valid plea 

agreement, waive the right to appeal under 18 U.S.C. § 3742 

(2006). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 

1990). This court reviews the validity of an appellate waiver 

de novo, and will enforce the waiver if it is valid and the 

issue appealed is within the scope thereof. United States v. 

Blick, 408 F.3d 162, 168 (4th Cir. 2005).
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An appeal waiver is valid if the defendant knowingly 

and intelligently agreed to the waiver. Id. at 169. To 

determine whether a waiver is knowing and intelligent, this 

court examines the background, experience, and conduct of the 

defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146 

(4th Cir. 1995). Based on the totality of circumstances in this 

case, we conclude that Rojas-Gomez knowingly and intelligently 

entered into the plea agreement and understood the waiver. See

United States v. General, 278 F.3d 389, 400 (4th Cir. 2002). 

We further conclude Rojas-Gomez’s challenges to the 

calculation of his advisory Guidelines range fall within the 

scope of the waiver. According to the plea agreement, RojasGomez waived “the right to appeal whatever sentence is imposed,” 

save for a sentence in excess of the Guidelines range determined 

at sentencing. (J.A. 9).*

 * Citations to “J.A.” refer to the joint appendix submitted 

by Appellant. 

 The seventy-eight-month sentence 

Rojas-Gomez received was within his Guidelines range. 

Accordingly, we conclude the waiver bars appellate review of the 

calculation of Rojas-Gomez’s Guidelines range, and thus grant 

the Government’s motion to dismiss the appeal of Rojas-Gomez’s 

sentence. 
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The appellate waiver does not, however, preclude 

appellate review of Rojas-Gomez’s conviction. Although no 

challenge to Rojas-Gomez’s conviction is raised, because this 

case is before us pursuant to Anders

We have examined the entire record in accordance with 

the requirements of Anders and have found no meritorious issues 

for appeal. We thus grant the Government’s motion to dismiss as 

to Rojas-Gomez’s sentence and affirm Rojas-Gomez’s conviction. 

This court requires that counsel inform Rojas-Gomez, in writing, 

of the right to petition the Supreme Court of the United States 

for further review. If Rojas-Gomez requests that a petition be 

filed, but counsel believes that such a petition would be 

frivolous, then counsel may move in this court for leave to 

withdraw from representation. Counsel’s motion must state that 

a copy thereof was served on Rojas-Gomez. 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.

, we have reviewed the Fed. 

R. Crim. P. 11 hearing and discern no infirmity in that 

proceeding. Accordingly, we affirm Rojas-Gomez’s conviction.

AFFIRMED IN PART;

DISMISSED IN PART