United States of America v. Booker, 125 S. Ct. 738 2005 . In Booker, the Supreme Court held that the mandatory…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4769
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOMINIC ANTHONY DICLEMENTE,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7885)
Submitted: September 26, 2005 Decided: November 23, 2005
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Oldric J. Labell, Jr., Newport News, Virginia, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Dominic Anthony Diclemente pled guilty to one count of
conspiracy with intent to distribute cocaine base, in violation of
21 U.S.C. § 846 (2000). In his plea agreement, Diclemente waived
“the right to contest either the conviction or the sentence in any
direct appeal or other post-conviction action, including any
proceeding under 28 U.S.C. § 2255.” The agreement provides that
the waiver does not apply to claims of ineffective assistance of
counsel or prosecutorial misconduct.
Finding that Diclemente’s plea was knowing and voluntary,
the magistrate judge accepted his guilty plea on June 16, 1995. At
sentencing on April 15, 1996, the district court reviewed
Diclemente’s answers at the Fed. R. Crim. P. 11 hearing, and
confirmed that he had entered his plea freely and voluntarily, that
he understood the consequences of his plea, and that he was
adequately represented by counsel. The district court sentenced
Diclemente to 262 months of imprisonment.
On appeal, Diclemente sought to raise the following
claims: (1) the court erred in sentencing him for crack cocaine
rather than powder cocaine; (2) the court erred in sentencing him
as a career offender under the guidelines; (3) counsel was
ineffective at sentencing with respect to the above-mentioned
grounds and for failing to move for a downward departure; and (4)
the court erred in denying his Fed. R. Crim. P. 35 motion. The

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Government moved to dismiss the appeal based on Diclemente’s waiver
of his appellate rights in his plea agreement. On July 7, 2004, we
granted the Government’s motion and dismissed the appeal.
On December 27, 2004, Diclemente filed a petition for
writ of certiorari, which the Supreme Court granted on February 28,
2005. The Supreme Court remanded the matter to this court in light
of its decision in United States v. Booker, 125 S. Ct. 738 (2005).
In Booker, the Supreme Court held that the mandatory manner in
which the federal sentencing guidelines required courts to impose
sentencing enhancements based on facts found by the court by a
preponderance of the evidence violated the Sixth Amendment. 125
S. Ct. at 746, 750. However, we have held in two recent cases that
a plea agreement waiver of the right to appeal that was accepted
prior to the Supreme Court’s decision in Booker was not invalidated
by the change in law effected by that decision. United States v.
Johnson, 410 F.3d 137 (4th Cir. 2005), petition for cert. filed,
U.S.L.W. (U.S. Sept. 7, 2005) (No. 05-6215); United
States v. Blick, 408 F.3d 162 (4th Cir. 2005). Thus, the issuance
of Booker does not render Diclemente’s plea unknowing or
involuntary, nor does Diclemente’s Booker challenge fall beyond the
scope of his pre-Booker appeal waiver. See Johnson, 410 F.3d at
153.
Accordingly, we reinstate our July 7, 2004 judgment
dismissing Diclemente’s appeal. We dispense with oral argument

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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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