UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4779

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DWAYNE ADAM LIEDKE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-02-249-BO)

Submitted: April 15, 2004 Decided: April 20, 2004

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Randolph M. Lee, Charlotte, North Carolina, for Appellant. Anne

Margaret Hayes, Assistant United States Attorney, Felice McConnell

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Unpublished opinions are not binding precedent in this circuit.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

Dwayne Adam Liedke appeals from a criminal judgment and

144-month sentence following his guilty plea entered in accordance

with a written plea agreement. Liedke pled guilty to disqualified

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000). In his plea agreement, Liedke waived his right to appeal

his conviction and sentence except in the face of an upward

departure from the sentencing guidelines. 

Liedke’s appointed counsel filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967), asserting that

there are no meritorious issues presented on appeal but raising one

question. Liedke was informed of his right to file a supplemental

brief but has failed to do so. Liedke challenges the district

court’s downward departure below the statutory minimum sentence for

the firearm offense. He asserts the court improperly relied on

factors other than Liedke’s cooperation to limit the downward

departure granted upon the Government’s motion filed pursuant to

U.S. Sentencing Guidelines Manual § 5K1.1 (2002). This court does

not review downward departures unless the departure resulted in an

illegal sentence or resulted from an incorrect application of the

guidelines. United States v. Hill, 70 F.3d 321, 324 (4th Cir.

1995) (citing 18 U.S.C. § 3742(a) (2000)). These factors are not

presented in Liedke’s sentencing. Accordingly, we lack

jurisdiction to review Liedke’s sentence. Id.
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Moreover, in United States v. Brown, 232 F.3d 399, 403

(4th Cir. 2000), this Court held that “a defendant may not appeal

his sentence if his plea agreement contains an express and

unqualified waiver of the right to appeal, unless that waiver was

unknowing or involuntary.” See also United States v. Wessells, 936

F.2d 165, 167 (4th Cir. 1991); United States v. Wiggins, 905 F.2d

51, 53 (4th Cir. 1990). Liedke has presented no evidence that his

decision to waive his appellate rights was unknowing or

unintelligent, or claimed any exception to the validity of the plea

waier. Thus, Liedke’s appeal is also foreclosed by the appellate

waiver he knowingly signed in his plea agreement. 

Accordingly, we dismiss Liedke’s appeal. We have examined

the entire record in this case in accordance with the requirements

of Anders and find no meritorious issues for appeal. This court

requires that counsel inform his client, in writing, of his right

to petition the Supreme Court of the United States for further

review. If the client 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 the client. We dispense with oral argument because

the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the

decisional process.

DISMISSED