**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 10**  **- 4741** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. VAN SON THAI, a/k/a Son Tau, a/k/a Thai Son , Defendant

- Appellant
.

Appeal from the United States Distri ct Court for the Eastern District of Virginia , at Alexandria
. Anthony John Trenga , District Judge. ( 1:09

- cr - 00408

- AJT

- 2 )

Submitted : March 24, 2011 Decided: March 31, 2011

Before NIEMEYER, GREGORY, and KEENAN , Circuit Judges.

Dismissed by un pub lished per curiam opinion
. Rebecca S. Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia, for Appellant. Kimberly Riley Pederson, Assistant United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Van Son Thai ple d guilty, pursuant to a written plea agreement, to one count of conspiracy to affect commerce by robbery, in violation of 18 U.S.C. § 1951 (2006), and one count of use of firearms during a crime of violence, in viola tion of 18 U.S.C. § 924(c) (2006). The district court sentenced Thai to 120 months’ imprisonment, which consisted of thirty

- six months on the conspiracy count and eighty

- four months on the firearms
count , running consecutively. Thai timely appealed. O n appeal, Thai first argues that count one of the superseding indictment failed to allege sufficient facts to establish federal jurisdiction and accordingly should have be en dismissed. Thai also argues that the district court erred at sentencing because it considered two additional robberies not identified in the statement of facts and because the court failed to find that Thai had committed the two additional robberies beyond a reasonable doubt. In response, the Government filed a motion to dismiss, relyin g on Thai’s appeal waiver. We agree with the Government’s position and dismiss Thai’s appeal
. It is well

- settled that “a defendant may waive in a valid plea agreement the right of appeal under 18 U.S.C.
§ 3742.” United States v. Wiggins , 905 F.2d 51, 5 3 (4th Cir. 1990). “Whether a defendant has effectively waived the right to appeal is an issue of law that [this c ourt] review[s] de novo.”3 United States v. Blick , 408 F.3d 162, 168 (4th Cir. 2005). In undertaking that review, this court will enforce an appellate waiver where such a waiver “is knowing and intelligent and the issue sought to be appealed falls within the scope of the appeal waiver.” United States v. Poindexter , 492 F.3d 263, 270 (4th Cir. 2007). An appellate waiver is generally considere d to be knowing and intelligent where the court specifically questioned the defendant regarding the waiver during the Rule 11 colloquy and the record indicates that the defendant understood the significance of the waiver. United States v. Johnson , 410 F.3 d 137, 151 (4th Cir. 2005). Our review of the record leads us to conclude that Thai knowingly and voluntarily waived the right to appeal his conviction and sentence.
O nly a “narrow class of claims involves errors that the defendant could not have reason ably contemplated when the plea agreement was executed,” and therefore are excluded from the scope of the waiver. Poindexter , 492 F.3d at 270 (internal quotation marks omitted). For example, claims that proceedings following the guilty plea were conducte d in violation of the defendant’s Sixth Amendment right to counsel, United States v.
Attar , 38 F.3d 727, 732

- 33 (4th Cir. 1994), or that a sentence was imposed in excess of the statutory maximum penalty “or based on a constitutionally impermissible factor such as race,” United4 States v. Marin

Thai first argues that count one of the superseding indictment failed to allege sufficient facts to est ablish federal jurisdiction , and thus, the district court lacked subject matter jurisdiction. Because subject matter jurisdiction involves the power of a court to hear a case, claims that a court lacked jurisdiction are not barred by an appellate waiver. , 961 F.2d 493, 496 (4th Cir. 1992), fall within the narrow category of claims excluded from an appellate waiver.

See United States v. Cotton , 535 U.S. 625, 630 (2002) (subject matter jurisdiction cannot be forfeited or waived). However, the Supreme Court also established in Cotton that a defective indictment does not deprive a court of jurisdiction. Id. at 631
. T hus, Thai’s claim is not jurisdictional, but “goes only to the merits of the case , ” and is therefore barred by his appe a l waiver. Id. (quoting Lamar v. United States Thai’s second claim , that the district court erred in impos ing his sentence, does not rise to the level of a “reasonably unforeseeable” constitutional violation, but rather constitutes a routine challenge to the procedural reasonableness of his sentence. Therefore, this claim falls squarely within the scope of th e appellate waiver. Accordingly we grant the Government’s motion to dismiss. We dispense with oral argument because the facts and legal contentions are adequately presented , 240 U.S. 60, 65 (1916)).5 in the materials before the court and argument would not aid the decisional proce ss. DISMISSED