UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4021

JACQUEL MASELLI KITCHENS,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(CR-99-107)

Submitted: August 18, 2000

Decided: September 8, 2000

Before MICHAEL and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Kenneth B. Folstein, Greenbelt, Maryland; Thomas A. Pavlinic,

Annapolis, Maryland, for Appellant. Lynne A. Battaglia, United

States Attorney, Deborah A. Johnston, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jacquel Maselli Kitchens pled guilty pursuant to a plea agreement

to one count of possession with intent to distribute cocaine in violation of 21 U.S.C.A. § 841 (West 1999), and one count of possession

of a firearm after conviction of a felony in violation of 18 U.S.C.

§ 922(g)(1) (1994). On appeal, Kitchens claims that the district erred

by considering hearsay from undisclosed confidential informants in

determining that Kitchens was not eligible for the"safety valve" provisions of 18 U.S.C.A. § 3553(f) (West Supp. 2000). Because Kitchens waived his right to appeal any sentence except an upward or

downward departure from the sentencing guidelines, we dismiss the

appeal.1

Kitchens entered into a plea agreement in which he agreed to waive

any right to appeal "whatever sentence is imposed, including any

issues that relate to the establishment of the guideline range, except

reserving the right to appeal any upward or downward departure from

the guideline range as determined by the court at the time of sentencing." At the Rule 11 plea colloquy,2 the district court determined that

Kitchens was a high school graduate and not under the influence of

any medications, alcohol or drugs. Kitchens was informed that the

mandatory minimum penalty for the drug offense was ten years. The

district court expressly addressed the waiver provision. The court

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1 We have considered the effect of Apprendi v. New Jersey, 530 U.S.

___, No. 98-478, 2000 WL 807189 (June 26, 2000), and find that,

because Kitchens received a sentence of imprisonment and term of

supervised release that did not exceed the statutory maximums set out in

21 U.S.C.A. § 841(b)(1)(C) (West 1999), no plain error occurred. See

United States v. Aguayo-Delgado, ___ F.3d ___, 2000 WL 988128, *6

(8th Cir. July 18, 2000).

2 Federal Rule of Criminal Procedure 11.

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noted that normally defendants have the right to appeal decisions

made by the judge at sentencing. The court stated that:

In this case both you [Kitchens] and the Government have

given up your right to appeal my guideline decisions, unless

I decide to depart, that is to sentence you above or below the

guideline range.

 If I should do that and either side thinks I have made a

mistake, you will have the right to appeal, to complain about

that mistake and get it corrected. Other than that, though,

you and the Government have given up your rights to appeal

my guideline decisions.

Kitchens stated that he understood. The court further stated that

Kitchens waived his right to challenge his conviction in a 28 U.S.C.A.

§ 2255 (West Supp. 2000) motion except for ineffective assistance of

counsel or prosecutorial misconduct. The court also stated that:

 You [Kitchens] will always have the right to complain if

you think I have imposed an illegal sentence, that is one

that's higher than those statutory maximums we talked

about at the beginning of the procedure.

Kitchens indicated that he understood. The district court informed

Kitchens that he faced a minimum term of ten years' imprisonment

and at least five years' supervised release.

The district court denied Kitchens' motion requesting application

of the safety valve and sentenced Kitchens to the minimum statutory

term of ten years' imprisonment and five years' supervised release.

A waiver of a criminal defendant's right to appeal contained in a

valid plea agreement "is enforceable against the defendant so long as

it is the result of a knowing and intelligent decision to forgo the right

to appeal." United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994)

(internal quotation and citations omitted). In the instant appeal, Kitchens' plea agreement contained a provision expressly waiving the right

to appeal any sentence and any issues involving the sentencing guide-

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lines except for an upward or downward departure from the sentencing guidelines range. The district court expressly addressed the waiver

provisions during Kitchens' Rule 11 colloquy. Kitchens stated that he

understood the provision and agreed to it. There is nothing in the

record to suggest that the plea or the plea agreement was unknowing

or involuntary. Accordingly, we find that the plea waiver provision is

enforceable. Because Kitchens was sentenced within the sentence

authorized by statute and the court did not impose an upward or

downward departure from the sentencing guidelines, we find that

Kitchens waived his right to appeal his sentence.3,4 Accordingly, we

dismiss Kitchens' 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 in the decisional process.

DISMISSED

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3 The statutory minimum sentence was ten years' imprisonment which

became the sentencing guidelines range of imprisonment because the

maximum sentence under the sentencing guidelines was less than the

statutory maximum. See Ch. 5, Part A of the U.S. Sentencing Guidelines

Manual; see also USSG § 5G1.1(b) (1998).

4 Despite a waiver of appeal rights, a defendant may retain the right to

appeal a sentence imposed in an unconstitutional manner. See Attar, 38

F.3d at 731. Kitchens did not have a constitutional right to confront confidential informants at a sentencing hearing. See United States v. Young,

981 F.2d 180, 187-88 (5th Cir. 1992).

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