UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4560

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HENRY SCURRY, IV,

Defendant - Appellant.

No. 04-4561

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

OTTO THORPE, III,

Defendant - Appellant.

Appeals from the United States District Court for the District of

Maryland, at Baltimore. William D. Quarles, Jr., District Judge.

(CR-03-377-WDQ)

Submitted: July 14, 2005 Decided: July 21, 2005

Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
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Dismissed by unpublished per curiam opinion.

Jonathan A. Gladstone, LAW OFFICES OF JONATHAN GLADSTONE,

Annapolis, Maryland; Jane Carol Norman, BOND, CONTE & NORMAN, PC,

Washington, D.C., for Appellants. Allen F. Loucks, United States

Attorney, Christopher J. Romano, Assistant United States Attorney,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Henry Scurry IV, pled guilty to possession with intent to

distribute cocaine (Count 6) and was sentenced to 146 months of

imprisonment. Otto Thorpe III, pled guilty to conspiracy to

distribute and possess with intent to distribute cocaine base and

cocaine (Count 1) and to possession of a firearm in furtherance of

a drug trafficking crime (Count 5) and was sentenced to

seventy-eight months for the drug conspiracy and sixty months

consecutively for the firearm offense. For the reasons that

follow, we dismiss the appeals.

On appeal Scurry and Thorpe allege that they were

improperly sentenced under a mandatory sentencing guideline scheme

in violation of United States v. Booker, 125 S. Ct. 738 (2005). In

addition, Thorpe alleges that his base offense level was improperly

increased by two levels for distributing drugs within 1000 feet of

public housing facility under U.S. Sentencing Guidelines Manual

§ 2D1.2(a)(1) (2003). In its brief, the Government argues that

Appellants have waived their right to contest their sentences

because they waived this right in their valid plea agreements. 

A defendant may waive the right to appeal if that waiver

is a knowing and intelligent decision to forego the right to

appeal. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th

Cir. 1995). Whether a defendant has effectively waived his right

to appeal is an issue of law we review de novo. United States v.
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Marin, 961 F.2d 493, 496 (4th Cir. 1992). To determine whether a

waiver is knowing and intelligent, this court examines the

background, experience, and conduct of the defendant.

Broughton-Jones, 71 F.3d at 1146. Generally, if the district court

fully questions a defendant regarding the waiver of his right to

appeal during a Fed. R. Crim. P. 11 colloquy, the waiver is both

valid and enforceable. United States v. Wessells, 936 F.2d 165,

167-68 (4th Cir. 1991); United States v. Wiggins, 905 F.2d 51,

53-54 (4th Cir. 1990). 

Appellants allege that they may attack their sentences

because of the Supreme Court’s opinion in Booker. We recently

held, however, that where, as here, the United States seeks

enforcement of a waiver, and there is no claim that the Government

breached its obligations under the plea agreement, we will enforce

the waiver to preclude a defendant from appealing a specific issue

if the record establishes that the waiver is valid and that the

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

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).

In their signed plea agreements, each Appellant agreed to

waive the rights conferred by 18 U.S.C. § 3742 (2000) to appeal

whatever sentence imposed, reserving only the right to appeal from

an upward departure from the guideline range established at

sentencing. (S.J.A. 98, 111). The district court specifically

reviewed this waiver with each Appellant at his guilty plea
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hearing. (S.J.A. 134, 153, 156-57). Furthermore, our review of the

plea hearings reveals that Scurry and Thorpe knowingly and

voluntarily pled guilty, understanding that they were waiving their

appellate rights to contest their sentences. Wessells, 936 F.2d at

167-68; Wiggins, 905 F.2d at 53-54. Finally, neither Appellant

received an upward departure, and there is no allegation that the

Government breached any obligation under the agreements. Because

Appellants only raise sentencing issues, which are clearly barred

by the waiver provision of their plea agreements, we will enforce

the waiver and dismiss the appeal. Blick, 408 F.3d at 168-70. 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