UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4348


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

KENNETH FAISON, a/k/a Roscoe,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
James K. Bredar, Chief District Judge. (1:16-cr-00363-JKB-6)


Submitted: March 19, 2019                                         Decided: March 29, 2019


Before KING, THACKER, and QUATTLEBAUM, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam opinion.


Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore, Maryland, for Appellant.
Peter Jeffrey Martinez, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Kenneth Faison appeals his conviction and 180-month sentence imposed

following his guilty plea to conspiracy to participate in a racketeering enterprise, in

violation of 18 U.S.C. § 1962(d) (2012). On appeal, Faison’s counsel has filed a brief

pursuant to Anders v. California, 

(1967), stating that there are no

meritorious grounds for appeal but questioning the validity of Faison’s guilty plea and the

reasonableness of Faison’s sentence. Although notified of his right to do so, Faison has

not filed a pro se supplemental brief. The Government has moved to dismiss the appeal

based on the appeal waiver contained in Faison’s plea agreement. For the reasons that

follow, we affirm in part and dismiss in part.

       We review de novo the validity of an appeal waiver. United States v. Thornsbury,

, 537 (4th Cir. 2012). An appeal waiver “preclude[s] a defendant from

appealing a specific issue if the record establishes that the waiver is valid and the issue

being appealed is within the scope of the waiver.” United States v. Archie, 

,

221 (4th Cir. 2014). A defendant validly waives his appeal rights if he agreed to the

waiver “knowingly and intelligently.” United States v. Manigan, 

, 627 (4th

Cir. 2010). “To determine whether a waiver is knowing and intelligent, we examine the

totality of the circumstances, including the experience and conduct of the accused, as

well as the accused’s educational background and familiarity with the terms of the plea

agreement.” 

(internal quotation marks omitted). Generally,

if a court questions a defendant regarding the waiver of his right to appeal during the Fed.

R. Crim. P. 11 colloquy, the waiver is both valid and enforceable. 

review of the Rule 11 colloquy and the plea agreement confirms that Faison

knowingly and voluntarily waived his right to appeal whatever sentence the district court

imposed. In addition, we reject Faison’s suggestion that the Government breached the

plea agreement, thereby rendering the appeal waiver unenforceable. See United States v.

Lewis, 

, 271 n.8 (4th Cir. 2011). We therefore conclude that the valid

appeal waiver bars any challenge to Faison’s sentence, which is within the statutory

maximum. Accordingly, we grant the Government’s motion in part and dismiss the

appeal as to Faison’s sentencing claim.

       Because a defendant cannot waive a colorable claim that his plea was not knowing

and voluntary, see, e.g., United States v. Attar, 

, 732-33 & n.2 (4th Cir. 1994),

we consider the validity of Faison’s guilty plea. Before accepting a guilty plea, the

district court must conduct a colloquy in which it informs the defendant of, and

determines that he understands, the nature of the charge to which he is pleading guilty,

any mandatory minimum penalty, the maximum penalty he faces, and the rights he is

relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco,

, 116 (4th Cir. 1991). The court also must ensure that the defendant’s plea

is voluntary and supported by an independent factual basis. Fed. R. Crim. P. 11(b)(2),

(3). Because Faison did not move to withdraw his guilty plea or otherwise preserve any

error in the plea proceedings, we review the adequacy of the plea colloquy for plain error.

United States v. Lockhart, __ F.3d __, __, No. 16-4441, 

, at *2 (4th Cir.

Feb. 27, 2019). Based on our review of the Rule 11 hearing, we conclude that the plea



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was knowing, voluntary, and supported by an independent basis in fact and that the

district court therefore committed no error in accepting Faison’s valid guilty plea.

       In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious grounds for appeal that fall outside the scope of Faison’s valid

appeal waiver. Accordingly, we dismiss the appeal in part and affirm in part. This court

requires that counsel inform Faison, in writing, of the right to petition the Supreme Court

of the United States for further review. If Faison requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then counsel may move in this

court for leave to withdraw from representation. Counsel’s motion must state that a copy

thereof was served on Faison.

       We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                     AFFIRMED IN PART,
                                                                     DISMISSED IN PART




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