UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4792


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY SEAN YANCEY, a/k/a Shizz,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:10-cr-00106-FL-1)


Submitted:   January 27, 2012             Decided:   February 2, 2012


Before SHEDD, WYNN, and FLOYD, Circuit Judges.


Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Stacey A. Phipps, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Anthony Sean Yancey pled guilty pursuant to a plea

agreement to one count of conspiracy to distribute and possess

with   intent    to    distribute      heroin,         in    violation       of     21    U.S.C.

§ 846 (2006), and was sentenced to 155 months in prison.                                       On

appeal,    Yancey      asserts       that        his       base     offense        level      was

incorrectly     increased      based       on    his       purported       career    offender

status because he argues that after United States v. Simmons,

(4th Cir. 2011), he has only one proper career

offender      predicate    offense.             Yancey       also    asserts        that      his

sentence is unlawful because the district court calculated the

drug weights with which to attribute him at sentencing based not

on actual drug weight, but on statements made by confidential

informants.          Relying   on    the        waiver       of   appellate        rights      in

Yancey’s plea agreement, the Government urges the dismissal of

this appeal as to Yancey’s drug weight calculation argument, and

asks    that     we     affirm       as         to     Yancey’s           career     offender

classification.        We dismiss in part, vacate in part, and remand.

           A    defendant      may   waive           the    right    to    appeal        if   that

waiver is knowing and intelligent.                     United States v. Poindexter,

, 270 (4th Cir. 2007).                         Generally, if the district

court fully questions a defendant regarding the waiver of his

right to appeal during the plea colloquy performed in accordance

with   Fed.     R.    Crim.    P.    11,    the        waiver       is    both     valid      and

                                            2
enforceable.     United States v. Johnson, 

, 151 (4th

Cir. 2005).      The question of whether a defendant validly waived

his right to appeal is a question of law that this court reviews

de novo.    United States v. Blick, 

, 168 (4th Cir.

2005).    We conclude that Yancey knowingly and voluntarily waived

the right to appeal any sentence imposed, reserving only the

right to appeal a sentence above the Guidelines range calculated

at sentencing and claims of ineffective assistance of counsel or

prosecutorial     misconduct.    Because   the   waiver      is    valid    and

precludes Yancey’s challenge as to the district court’s drug

weight calculation, we dismiss the appeal in part.

           Yancey’s appellate waiver does not bar his claim that

he was improperly classified as a career offender. 1              The parties

agree that Yancey’s career offender classification depends on

whether Yancey’s September 13, 2007 North Carolina conviction

for possession with intent to sell or deliver ecstasy, for which

Yancey was sentenced to nine to eleven months in prison, remains

a proper career offender predicate offense after 

(holding that a district court must look to whether

a   particular   defendant   could   receive   more   than    one    year    in

prison based upon his offense class and prior record level to


      1
       The Government agreed at sentencing            that    Yancey    could
appeal his career offender classification.



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determine whether a prior North Carolina conviction may serve as

a career offender predicate offense).

              Under       the   North   Carolina       Structured       Sentencing       Act,

sentences are contingent on two factors:                     the designated “class

of offense” and the offender’s “prior record level.”                                N.C. Gen.

Stat.    §    15A-1340.13(b)        (2009).           Although    the    Government          has

included      as     an    addendum     to      its   appellate    brief        a     copy    of

Yancey’s state judgment of conviction, which suggests that the

September 13th conviction was for a Class H offense, and that

his prior record level was IV, the district court record is

devoid of evidence establishing whether the conviction remains a

proper career offender predicate offense after Simmons.                               Because

the district court had no opportunity to consider the judgment

of conviction for the September 13th conviction, and since the

parties       were    not       given     the       opportunity    to     litigate           the

judgment’s validity or gauge its implication, we decline to take

judicial notice over the judgment of conviction.                                See United

States       v.    Vann,    

,     776   n.6    (4th        Cir.    2011).

Accordingly, we vacate Yancey’s sentence, in part, and remand

the matter to the district court so it may determine, in the

first     instance,        whether      Yancey’s       September        13th     conviction




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remains      a   proper    career    offender      predicate    offense   after

Simmons. 2


             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 IN PART;
                                                             VACATED IN PART;
                                                                 AND REMANDED




     2
       By this disposition, we intimate no view as to whether
Yancey remains a career offender after Simmons.



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