UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4576

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

IJAZ OLIVER,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. David A. Faber, Chief

District Judge. (2:06-cr-00145-1)

Submitted: May 12, 2008 Decided: June 2, 2008

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Barron M. Helgoe, VICTOR, VICTOR & HELGOE, LLP, Charleston, West

Virginia, for Appellant. Charles T. Miller, United States

Attorney, Erik S. Goes, Assistant United States Attorney,

Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Ijaz Oliver pled guilty pursuant to a plea agreement to

one count of conspiracy to distribute five grams or more of cocaine

base, in violation of 21 U.S.C. § 846 (2000). In the plea

agreement, Oliver waived his right to appeal the reasonableness of

any sentence imposed within the properly calculated Sentencing

Guidelines range of imprisonment. Oliver was sentenced within the

Guidelines range of imprisonment. On appeal, he claims the

district court erred by not considering the crack cocaine/powder

cocaine sentencing disparity. He further argues a remand is

appropriate for resentencing consistent with Guidelines Amendment

706, which was retroactive as of March 3, 2008, see USSG

§ 1B1.10(c). Because we find the appeal waiver enforceable, we

dismiss the appeal. 

We find Oliver’s appeal waiver was knowing and voluntary

and should not be disturbed. We note Oliver does not challenge the

validity of the appeal waiver. He argues, however, that his claim

that the district court erred by not considering a downward

departure based on the crack cocaine/powder cocaine sentencing

disparity is not foreclosed by his appeal waiver. The Supreme

Court held in Kimbrough v. United States, 128 S. Ct. 558 (2007),

that the crack cocaine Guidelines are advisory and a district court

may impose a lower sentence because of the crack/powder disparity.

However, Oliver’s sentence was within the Guidelines and his appeal
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waiver was knowing and voluntary. Thus, this court may not review

the district court’s decision to deny a downward departure based on

the sentencing disparity despite a change to the law. United

States v. Blick, 408 F.3d 162, 170-71 (4th Cir. 2005) (holding that

waiver of right to appeal in a plea agreement accepted before

decision in United States v. Booker, 543 U.S. 220 (2005), was not

invalidated by change in law); see also United States v. Lee, __

F.3d __, 2008 WL 1745141 (2d Cir. Apr. 17, 2008) (appeal waiver was

enforceable despite the fact that Kimbrough would have permitted

court to consider the crack/powder cocaine disparity).

We decline to remand the case to the district court for

resentencing for the purpose of allowing the court to consider

Guidelines Amendment 706, which was retroactive as of March 3,

2008, see USSG § 1B1.10(c). Oliver may file a motion for a

sentence reduction based on the amendment. See United States v.

Brewer, 520 F.3d 367, 373 (4th Cir. 2008).

Accordingly, because of Oliver’s appeal waiver, we

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