UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4857

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TERRY LAMONT WILLIAMS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

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

District Judge. (CR-04-23-H)

Submitted: June 24, 2005 Decided: July 29, 2005

Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

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

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*The court also pronounced an alternative non-guideline

sentence under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), a

term of five years imprisonment. 

- 2 -

PER CURIAM:

Terry Lamont Williams pled guilty to possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was

sentenced to a term of fifty-four months imprisonment.* Williams

seeks to appeal his sentence on the ground that the district court

erred by making factual findings that increased the guideline

sentence and violated the Sixth Amendment under Blakely v.

Washington, 124 S. Ct. 2531 (2004). The government asserts that

Williams’ appeal should be dismissed pursuant to the waiver

provision in his plea agreement. In his reply brief, Williams

contends that the waiver is not enforceable because the plea

agreement contemplated that he would be sentenced under a mandatory

guidelines scheme and, when he entered his guilty plea, Williams

could not foresee that the mandatory guidelines would be held

unconstitutional, as they were in United States v. Booker, 125 S.

Ct. 738 (2005). For the reasons explained below, we dismiss the

appeal.

Under the terms of his plea agreement, Williams agreed:

To waive knowingly and expressly all rights,

conferred by 18 U.S.C. § 3742, reserving only

the right to appeal from an upward departure

from the guideline range that is established

at sentencing, and further to waive all rights

to contest the conviction or sentence in any

post-conviction proceeding, including one
- 3 -

pursuant to 28 U.S.C. § 2255, excepting an

appeal or motion based upon grounds of

ineffective assistance of counsel or

prosecutorial misconduct not known to the

Defendant at the time of the Defendant’s

guilty plea.

This court reviews the validity of a waiver de novo.

United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will

uphold a waiver of appellate rights if the waiver is valid and the

issue being appealed is within the scope of the waiver. United

States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). A waiver is

valid if the defendant’s agreement to the waiver was knowing and

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

1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.

1991). 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. Wessells, 936 F.2d at 167-68. However, “the issue

ultimately is evaluated by reference to the totality of the

circumstances and must depend upon the particular facts and

circumstances surrounding that case.” United States v. Blick, 408

F.3d 162, 169 (4th Cir. 2005) (internal quotations and citations

omitted).

Here, the record reveals that the district court accepted

guilty pleas from a number of defendants at a hearing conducted

pursuant to Fed. R. Crim. P. 11. The court conducted a thorough

Rule 11 inquiry. Although the court did not address Williams
- 4 -

personally about the waiver provision in his plea agreement, the

court warned the group of defendants, including Williams, that a

waiver of the right to appeal in a plea agreement could be binding.

When he was questioned personally by the court, Williams assured

the court that he had read and understood the plea agreement which

he had signed.

On appeal, Williams does not claim that he was unaware of

the waiver or its effect. Instead, he argues that his waiver was

not knowing and intelligent because he was not informed that he was

agreeing to be sentenced under a sentencing scheme that was later

held to be unconstitutional. He also contends that, if the waiver

is effective, his sentence constituted an upward departure from the

“relevant statutory maximum,” i.e., the guideline range that would

have applied without the enhancements adopted by the district

court. We are not persuaded that Williams’ sentence constituted an

upward departure. Moreover, we recently held that a waiver of the

right to appeal contained in a plea agreement that was accepted

before the Supreme Court’s decision in United States v. Booker, 125

S. Ct. 738 (2005), was not invalidated by the change in the law

effected by Booker. Blick, 408 F.3d at 170-73. We conclude that

Williams’ waiver of his right to appeal was knowing and voluntary,

that the sentence was within the scope of the waiver provision, and

that the waiver is enforceable.
- 5 -

We therefore dismiss the appeal. 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