UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4628

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VICTOR DAVIS SPENCER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

Boyle, District Judge. (2:11-cr-00047-BO-2)

Submitted: March 26, 2013 Decided: April 5, 2013

Before DAVIS, KEENAN, and THACKER, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam 

opinion.

Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North 

Carolina, for Appellant. Jennifer P. May-Parker, Assistant 

United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Victor Davis Spencer pled guilty, pursuant to a plea 

agreement, to conspiracy to distribute and to possess with 

intent to distribute more than twenty-eight grams of crack 

cocaine, in violation of 21 U.S.C. § 846 (2006), and was 

sentenced to 132 months’ imprisonment. On appeal, counsel has 

filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), asserting that there are no meritorious grounds for 

appeal, but questioning the validity of Spencer’s guilty plea 

and whether the district court committed plain error by failing 

to rule on Spencer’s objection to the career offender 

designation. Although advised of his right to file a pro se 

supplemental brief, Spencer has not done so. The Government has 

moved to dismiss the appeal of Spencer’s sentence on the basis 

of the waiver of appellate rights contained in Spencer’s plea 

agreement. For the reasons that follow, we grant the 

Government’s motion and dismiss the appeal of Spencer’s 

sentence, and we affirm his conviction.

A defendant may, in a valid plea agreement, waive the 

right to appeal under 18 U.S.C. § 3742 (2006). United States v. 

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This Court reviews 

the validity of an appellate waiver de novo, and will enforce 

the waiver if it is valid and the issue appealed is within the 

scope thereof. United States v. Blick, 408 F.3d 162, 168 (4th 
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Cir. 2005). An appeal waiver is valid if the defendant 

knowingly and intelligently agreed to it. Id. at 169. To 

determine whether a waiver is knowing and intelligent, this 

Court examines the background, experience, and conduct of the 

defendant. United States v. Broughton–Jones, 71 F.3d 1143, 1146 

(4th Cir. 1995). We have thoroughly reviewed the plea agreement 

and the transcript of the Fed. R. Crim. P. 11 hearing. Based on 

the totality of circumstances in this case, we conclude that 

Spencer knowingly and voluntarily entered into the plea 

agreement and understood the waiver. See United States v. 

General, 278 F.3d 389, 400 (4th Cir. 2002). 

We further conclude that Spencer’s challenge to the 

district court’s handling of his objection to the career 

offender designation falls within the scope of the waiver. In 

his plea agreement, Spencer waived the right to appeal his 

sentence, including any claims related to the determination of 

his advisory Guidelines range, reserving only the right to 

appeal from a sentence greater than the Guidelines range 

established at sentencing. Spencer argues that the district 

court committed plain error by failing to rule on his 

outstanding objection to the career offender designation. See

Fed. R. Crim. P. 32(i)(3)(B). However, because Spencer received 

a sentence well below his Guidelines range and this issue 

relates to the establishment of that range, his discretion falls 
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within the purview of the waiver provision. Accordingly, we 

grant the Government’s motion to dismiss in part and dismiss the 

appeal of Spencer’s sentence.

Although the appeal waiver precludes our review of 

Spencer’s sentence, the waiver does not bar review of Spencer’s 

conviction. Because Spencer did not move to withdraw his guilty 

plea in the district court, we review the Rule 11 hearing for 

plain error. United States v. Martinez, 277 F.3d 517, 525 (4th 

Cir. 2002). “To establish plain error, [Spencer] must show that 

an error occurred, that the error was plain, and that the error 

affected his substantial rights.” United States v. Muhammad, 

478 F.3d 247, 249 (4th Cir. 2007). We have reviewed the record 

and discern no error warranting correction on plain error 

review. 

In accordance with Anders, we have thoroughly reviewed 

the entire record for any other potentially meritorious issues 

outside the scope of Spencer’s appeal waiver and have found 

none. We therefore affirm Spencer’s conviction. This Court 

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

to petition the Supreme Court of the United States for further 

review. If Spencer requests that a petition be filed, but 

counsel believes that such a petition would be frivolous, 

counsel may move in this Court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 
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was served on Spencer. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before this Court and argument would not aid the 

decisional process.

DISMISSED IN PART;

AFFIRMED IN PART