                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4579



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LEROY BURTON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-116-F)


Submitted:   August 16, 2006            Decided:   September 26, 2006


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Thomas Peter McNamara, Federal     Public Defender, Stephen Clayton
Gordon, OFFICE OF THE FEDERAL       PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.   Anne    Margaret Hayes, Assistant United
States Attorney, Raleigh, North    Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Leroy Burton pled guilty to conspiracy to commit bank

fraud, in violation of 18 U.S.C. § 371 (2000), and two counts of

aiding and abetting bank fraud, in violation of 18 U.S.C. § 1344

(2000), and was sentenced to a term of 57 months’ imprisonment.

Burton now seeks to appeal his sentence.        Because he waived his

right to appeal, we grant the Government’s motion to dismiss and

dismiss the appeal.

          This court reviews the validity of a waiver de novo.

United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will

uphold a waiver of appellate rights if the waiver is valid and the

issue being appealed is within the scope of the waiver.           United

States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994).        A waiver is

valid if the defendant’s agreement to the waiver was knowing and

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

1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.

1991).   Generally,    if   the   district   court   fully   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.    Wessells, 936 F.2d at 167-68.

          This court determined in United States v. Blick, 408 F.3d

162 (4th Cir. 2005), that a waiver of the right to appeal in a plea

agreement entered into prior to the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005), was not invalidated


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by the change in law effectuated by that decision and that the

Booker error fell within the scope of Blick’s generic waiver.

Blick, 408 F.3d at 170, 173 (“[A]t the time he entered the plea

agreement, both Blick and the United States expressly contemplated

and agreed that he would be sentenced in exactly the manner in

which    he    was,   in   fact,   sentenced:    the   pre-Booker    Guidelines

system.”); see also United States v. Johnson, 410 F.3d 137 (4th

Cir. 2005) (rejecting Johnson’s argument that a defendant cannot

waive the right to an appeal based on subsequent changes in the

law).    Burton’s plea agreement similarly expressly contemplated he

would be sentenced in accordance with the Sentencing Guidelines.

              Burton’s contention that his claim does not fall within

the scope of the appeal waiver because it concerns an upward

departure is without merit. An upward departure is a sentence that

departs from the applicable sentencing guidelines range.                   U.S.

Sentencing Guidelines Manual § 5G1.1(A).               The district court did

not impose an upward departure in sentencing Burton because it did

not depart from the correctly calculated sentencing guidelines

range.

              Further, Burton’s reliance on United States v. Guevara,

941 F.2d 1299 (4th Cir. 1991), to argue that the Government may not

seek    to    enforce   the   waiver   because   it    was   too   one-sided   is

misplaced.      In Guevara, this court construed a plea agreement that

contained a waiver of the defendant’s right to appeal but was


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silent as to the government’s appeal rights.            This court held that

“such a provision against appeals must also be enforced against the

government, which must be held to have implicitly cast its lot with

the district court, as the defendant explicitly did.” Guevara, 941

F.2d at 1299-1300.        Burton’s plea agreement is distinguishable

because Burton explicitly waived his right to appeal and the

Government explicitly retained its right to appeal in the plea

agreement.

              Finally, Burton does not dispute that his waiver was

knowing and voluntary.       The appeal waiver was unambiguous, it was

reviewed by the court, and Burton acknowledged his understanding of

the waiver at the plea hearing.        We therefore find the plea waiver

is both valid and enforceable.

              Accordingly, we grant the Government’s motion to dismiss

and 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.


                                                                      DISMISSED




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