UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4869

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STEPHEN MICHAEL ROOKS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at New Bern. Malcolm J. Howard,

District Judge. (CR-04-25)

Submitted: August 31, 2005 Decided: November 1, 2005

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

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

Assistant Federal Public Defender, James E. Todd, Jr., Research &

Writing Attorney, Raleigh, North Carolina, for Appellant.

Christine Witcover Dean, Anne Margaret Hayes, Winnie Jordan Reaves,

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Unpublished opinions are not binding precedent in this circuit.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:

Stephen Michael Rooks pleaded guilty to one count of

distribution of more than fifty grams of crack, in violation of 21

U.S.C. § 841(a)(1) (2000), and was sentenced to 120 months in

prison. He now appeals. The United States moves to dismiss the

appeal based on Rooks’ waiver of his appellate rights in his plea

agreement. We grant the motion and dismiss the appeal. 

Rooks signed a written plea agreement containing the

following provision:

The Defendant agrees . . . [t]o waive knowingly and

expressly all rights, conferred by 18 U.S.C. § 3742, to

appeal whatever sentence is imposed, including any issues

that relate to the establishment of the Guideline range,

reserving only the right to appeal from an upward

departure from the Guideline range that is established at

sentencing. 

The plea agreement set forth the minimum and maximum sentence that

Rooks faced, made clear that the sentencing guidelines applied, and

stated that the court would apply a sentence within the guidelines

unless there was a basis for departure. 

At Rooks’ Fed. R. Crim. P. 11 hearing, the district court

ascertained that Rooks was twenty-one years old and a high school

graduate. He was not under the influence of drugs or alcohol. The

court identified the rights that Rooks waived by pleading guilty,

and specifically mentioned the right to appeal. Rooks informed the

court that he understood the court’s explanation of the rights he

was waiving by pleading guilty. The court ascertained that Rooks
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understood the charges against him, the applicable penalties, and

the mandatory nature of the sentencing guidelines. Rooks

represented to the court that he was satisfied with his attorney’s

services and that he had voluntarily entered into the plea

agreement. He stated that he was guilty of the offense charged.

After hearing the Government’s proffer, the district court

concluded that Rooks had knowingly and voluntarily entered his

plea, which was supported by an independent factual basis. The

court accordingly adjudged Rooks guilty. 

At sentencing, the district court overruled Rooks’

objection to the presentence report, determined that Rooks’

guideline range was 120-121 months, and sentenced him to 120 months

in prison. Rooks appeals, contending that the district court

violated the Sixth Amendment when it assigned him two criminal

history points because he committed the instant offense while on

supervised probation. The United States responds that Rooks

validly waived his right to appeal this issue. 

This case is governed by our recent decision in United

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

was whether a waiver-of-appellate-rights provision in a plea

agreement was enforceable after the Supreme Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005). We employed a twopart analysis to decide the issue. First, we considered whether

the waiver was knowing and voluntary. Having decided that it was,
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we asked whether the issues raised on appeal were within the scope

of that waiver. They were, and the appeal was dismissed. Blick,

408 F.3d at 168-73.

This court reviews de novo the validity of a waiver.

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Whether

a waiver of the right to appeal is knowing and intelligent depends

upon the facts and circumstances surrounding its making, including

the defendant’s background, experience, and conduct. United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). A waiver is

ineffective if the district court fails to question the defendant

about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.

1991), unless other evidence in the record shows that the waiver

was informed and voluntary. Davis, 954 F.2d at 186. 

Here, Rooks’ waiver was clearly knowing and voluntary.

He was twenty-one, a high school graduate, and not under the

influence of drugs or alcohol when he entered his plea. The

district judge questioned him about the waiver of his appellate

rights, and Rooks stated that he understood what rights he was

waiving. The details of the waiver were clearly set forth in the

written plea agreement.

In his plea agreement, Rooks reserved the right to appeal

an upward departure from his guideline range. Here, he attempts to

challenge the calculation of his criminal history category. This
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issue lies within the scope of the appellate waiver. In accordance

with Blick, we will enforce the waiver. 

We therefore grant the motion to 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. The motion to

suspend the briefing schedule is denied as moot.

DISMISSED