UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4479

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL RAY ANDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Louise W. Flanagan, Chief

District Judge. (CR-03-80-FL)

Submitted: December 16, 2005 Decided: February 6, 2006

Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam

opinion.

Kelly L. Greene, STUBBS & PERDUE, P.A., New Bern, North Carolina,

for Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Jennifer May-Parker, Assistant United States Attorneys,

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Unpublished opinions are not binding precedent in this circuit.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:

Michael Ray Anderson pled guilty to being a felon in

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

(2000). The district court sentenced him as an armed career

criminal, see 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2005), to a

184-month term of imprisonment. Anderson appeals his conviction

and sentence, asserting that the district court should have allowed

him to withdraw his guilty plea and that the court erred in

classifying him as an armed career criminal. The Government

asserts that Anderson validly waived the right to appeal his

sentence in the plea agreement. We agree with the Government and

dismiss that portion of the appeal. We affirm Anderson’s

conviction.

Anderson asserts that the district court erred by denying

his motion to withdraw his guilty plea. We have thoroughly

reviewed the record and conclude that the district court properly

applied the six-factor test in United States v. Moore, 931 F.2d

245, 248 (4th Cir. 1991). We therefore find that the court did not

abuse its discretion in denying Anderson’s motion to withdraw his

guilty plea. United States v. Ubakanma, 215 F.3d 421, 424 (4th

Cir. 2000) (stating standard of review).

Next, Anderson contends that the district court erred in

sentencing him as an armed career criminal, and the Government

asserts that he waived the right to challenge his sentence in the
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plea agreement. 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). 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. Wessells, 936 F.2d 165,

167-68 (4th Cir. 1991); United States v. Wiggins, 905 F.2d 51, 53-

54 (4th Cir. 1990). A waiver of appeal does not prohibit the

appeal of a sentence imposed in excess of the statutory maximum, a

sentence based on a constitutionally impermissible factor such as

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

proceedings conducted in violation of the Sixth Amendment right to

counsel following the entry of the guilty plea. United States v.

Attar, 38 F.3d 727, 732-33 (4th Cir. 1994). 

Our review of the record leads us to conclude that

Anderson knowingly and voluntarily waived the right to appeal his

sentence. See Blick, 408 F.3d at 169-73 (holding that plea

agreement waiver of right to appeal that district court accepted

prior to United States v. Booker, 543 U.S. 220 (2005), was not

invalidated by change in law effected by that decision). Moreover,

the challenges raised on appeal to the armed career criminal

designation fall within the scope of the waiver. See id. at

169-70. We therefore dismiss this portion of the appeal.
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Accordingly, we affirm Anderson’s conviction and dismiss

the appeal of his sentence. 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.

AFFIRMED IN PART; DISMISSED IN PART