UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4581

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WYOMING FITZGERALD GILLIAM,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Elizabeth City. Terrence W. Boyle,

Chief District Judge. (CR-03-25-BO)

Submitted: September 30, 2005 Decided: November 2, 2005

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

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

Assistant Federal Public Defender, Windy C. Venable, Research and

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Unpublished opinions are not binding precedent in this circuit.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

Wyoming Fitzgerald Gilliam pled guilty to possession with

intent to distribute more than five grams of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (2000), and was sentenced to a

term of seventy months of imprisonment. Gilliam now seeks to

appeal his sentence. Because he waived his right to appeal, we

grant the Government’s motion to dismiss the appeal.

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.

This court determined in United States v. Blick, 408 F.3d

162 (4th Cir. 2005), that a waiver of the right to appeal in a plea

agreement entered into prior to the Supreme Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005), was not invalidated

by the change in law effectuated by that decision and that the
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Booker error fell within the scope of Blick’s generic waiver.

Blick, 408 F.3d at 170, 173 (“[A]t the time he entered the plea

agreement, both Blick and the United States expressly contemplated

and agreed that he would be sentenced in exactly the manner in

which he was, in fact, sentenced: the pre-Booker Guidelines

system.”); see also United States v. Johnson, 410 F.3d 137 (4th

Cir. 2005) (rejecting Johnson’s argument that a defendant cannot

waive the right to an appeal based on subsequent changes in the

law). Gilliam’s plea agreement similarly expressly contemplated he

would be sentenced in accordance with the sentencing guidelines.

Gilliam’s contention that his claim does not fall within

the scope of the appeal waiver because it concerns an upward

departure is without merit. An upward departure is a sentence that

departs from the applicable sentencing guidelines range. U.S.

Sentencing Guidelines Manual § 5K2.0. The district court did not

impose an upward departure in sentencing Gilliam because it did not

depart from the correctly calculated sentencing guidelines range.

Further, Gilliam’s reliance on United States v. Guevara,

941 F.2d 1299 (4th Cir. 1991), to argue that the Government may not

seek to enforce the waiver because it was too one-sided is

misplaced. In Guevara, this court construed a plea agreement that

contained a waiver of the defendant’s right to appeal but was

silent as to the government’s appeal rights. We held that “such a

provision against appeals must also be enforced against the
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government, which must be held to have implicitly cast its lot with

the district court, as the defendant explicitly did.” Guevara, 941

F.2d at 1299-1300. Gilliam’s plea agreement is distinguishable

because Gilliam explicitly waived his right to appeal and the

Government explicitly retained its right to appeal in the plea

agreement.

Finally, Gilliam does not dispute that his waiver was

knowing and voluntary. The appeal waiver was unambiguous, it was

reviewed by the court, and Gilliam acknowledged his understanding

of the waiver at the plea hearing. We therefore find the plea

waiver is both valid and enforceable.

Accordingly, the Government’s motion to dismiss this

appeal is granted. 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