                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4628


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

VICTOR DAVIS SPENCER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.   Terrence W.
Boyle, District Judge. (2:11-cr-00047-BO-2)


Submitted:   March 26, 2013                 Decided:   April 5, 2013


Before DAVIS, KEENAN, and THACKER, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Victor Davis Spencer pled guilty, pursuant to a plea

agreement,      to    conspiracy        to    distribute       and     to    possess       with

intent    to    distribute        more    than      twenty-eight        grams      of     crack

cocaine,       in    violation     of    21    U.S.C.     §    846     (2006),      and     was

sentenced to 132 months’ imprisonment.                        On appeal, counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),     asserting      that    there      are    no   meritorious            grounds    for

appeal, but questioning the validity of Spencer’s guilty plea

and whether the district court committed plain error by failing

to   rule       on    Spencer’s         objection       to     the     career       offender

designation.          Although advised of his right to file a pro se

supplemental brief, Spencer has not done so.                         The Government has

moved to dismiss the appeal of Spencer’s sentence on the basis

of the waiver of appellate rights contained in Spencer’s plea

agreement.           For   the     reasons        that       follow,        we    grant     the

Government’s         motion      and     dismiss      the      appeal        of    Spencer’s

sentence, and we affirm his conviction.

               A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006).                         United States v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                            This Court reviews

the validity of an appellate waiver de novo, and will enforce

the waiver if it is valid and the issue appealed is within the

scope thereof.          United States v. Blick, 408 F.3d 162, 168 (4th

                                              2
Cir.    2005).           An    appeal      waiver            is    valid      if    the     defendant

knowingly and intelligently agreed to it.                                       Id. at 169.            To

determine      whether         a    waiver     is       knowing         and   intelligent,            this

Court examines the background, experience, and conduct of the

defendant.        United States v. Broughton–Jones, 71 F.3d 1143, 1146

(4th Cir. 1995).              We have thoroughly reviewed the plea agreement

and the transcript of the Fed. R. Crim. P. 11 hearing.                                          Based on

the totality of circumstances in this case, we conclude that

Spencer       knowingly            and   voluntarily               entered         into     the       plea

agreement      and       understood       the       waiver.             See     United     States       v.

General, 278 F.3d 389, 400 (4th Cir. 2002).

              We further conclude that Spencer’s challenge to the

district      court’s         handling         of       his       objection        to     the     career

offender designation falls within the scope of the waiver.                                              In

his    plea    agreement,           Spencer      waived           the    right      to    appeal       his

sentence, including any claims related to the determination of

his    advisory      Guidelines           range,         reserving         only      the    right      to

appeal     from      a    sentence        greater             than      the     Guidelines           range

established at sentencing.                      Spencer argues that the district

court     committed           plain      error          by     failing        to     rule       on     his

outstanding objection to the career offender designation.                                             See

Fed. R. Crim. P. 32(i)(3)(B).                       However, because Spencer received

a   sentence      well        below      his    Guidelines              range      and    this       issue

relates to the establishment of that range, his discretion falls

                                                    3
within the purview of the waiver provision.                             Accordingly, we

grant the Government’s motion to dismiss in part and dismiss the

appeal of Spencer’s sentence.

           Although      the     appeal       waiver       precludes     our    review    of

Spencer’s sentence, the waiver does not bar review of Spencer’s

conviction.      Because Spencer did not move to withdraw his guilty

plea in the district court, we review the Rule 11 hearing for

plain error.      United States v. Martinez, 277 F.3d 517, 525 (4th

Cir. 2002).      “To establish plain error, [Spencer] must show that

an error occurred, that the error was plain, and that the error

affected his substantial rights.”                    United States v. Muhammad,

478 F.3d 247, 249 (4th Cir. 2007).                   We have reviewed the record

and   discern    no     error    warranting          correction        on     plain    error

review.

           In accordance with Anders, we have thoroughly reviewed

the entire record for any other potentially meritorious issues

outside   the    scope    of    Spencer’s         appeal     waiver     and    have    found

none.     We therefore affirm Spencer’s conviction.                            This Court

requires that counsel inform Spencer, in writing, of his right

to petition the Supreme Court of the United States for further

review.     If   Spencer       requests       that     a    petition     be    filed,    but

counsel   believes       that    such     a       petition     would     be    frivolous,

counsel   may    move    in     this    Court      for     leave   to       withdraw    from

representation.       Counsel’s motion must state that a copy thereof

                                              4
was served on Spencer.       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.

                                                      DISMISSED IN PART;
                                                        AFFIRMED IN PART




                                    5
