United States of America v. Booker, 125 S. Ct. 738 2005 . In addition, Thorpe alleges that his base offense…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4560
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HENRY SCURRY, IV,
Defendant - Appellant.
No. 04-4561
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OTTO THORPE, III,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-377-WDQ)
Submitted: July 14, 2005 Decided: July 21, 2005
Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.

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Dismissed by unpublished per curiam opinion.
Jonathan A. Gladstone, LAW OFFICES OF JONATHAN GLADSTONE,
Annapolis, Maryland; Jane Carol Norman, BOND, CONTE & NORMAN, PC,
Washington, D.C., for Appellants. Allen F. Loucks, United States
Attorney, Christopher J. Romano, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Henry Scurry IV, pled guilty to possession with intent to
distribute cocaine (Count 6) and was sentenced to 146 months of
imprisonment. Otto Thorpe III, pled guilty to conspiracy to
distribute and possess with intent to distribute cocaine base and
cocaine (Count 1) and to possession of a firearm in furtherance of
a drug trafficking crime (Count 5) and was sentenced to
seventy-eight months for the drug conspiracy and sixty months
consecutively for the firearm offense. For the reasons that
follow, we dismiss the appeals.
On appeal Scurry and Thorpe allege that they were
improperly sentenced under a mandatory sentencing guideline scheme
in violation of United States v. Booker, 125 S. Ct. 738 (2005). In
addition, Thorpe alleges that his base offense level was improperly
increased by two levels for distributing drugs within 1000 feet of
public housing facility under U.S. Sentencing Guidelines Manual
§ 2D1.2(a)(1) (2003). In its brief, the Government argues that
Appellants have waived their right to contest their sentences
because they waived this right in their valid plea agreements.
A defendant may waive the right to appeal if that waiver
is a knowing and intelligent decision to forego the right to
appeal. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th
Cir. 1995). Whether a defendant has effectively waived his right
to appeal is an issue of law we review de novo. United States v.

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Marin, 961 F.2d 493, 496 (4th Cir. 1992). To determine whether a
waiver is knowing and intelligent, this court examines the
background, experience, and conduct of the defendant.
Broughton-Jones, 71 F.3d at 1146. Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during a Fed. R. Crim. P. 11 colloquy, the waiver is both
valid and enforceable. United States v. Wessells, 936 F.2d 165,
167-68 (4th Cir. 1991); United States v. Wiggins, 905 F.2d 51,
53-54 (4th Cir. 1990).
Appellants allege that they may attack their sentences
because of the Supreme Court’s opinion in Booker. We recently
held, however, that where, as here, the United States seeks
enforcement of a waiver, and there is no claim that the Government
breached its obligations under the plea agreement, we will enforce
the waiver to preclude a defendant from appealing a specific issue
if the record establishes that the waiver is valid and that the
issue being appealed in within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
In their signed plea agreements, each Appellant agreed to
waive the rights conferred by 18 U.S.C. § 3742 (2000) to appeal
whatever sentence imposed, reserving only the right to appeal from
an upward departure from the guideline range established at
sentencing. (S.J.A. 98, 111). The district court specifically
reviewed this waiver with each Appellant at his guilty plea

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hearing. (S.J.A. 134, 153, 156-57). Furthermore, our review of the
plea hearings reveals that Scurry and Thorpe knowingly and
voluntarily pled guilty, understanding that they were waiving their
appellate rights to contest their sentences. Wessells, 936 F.2d at
167-68; Wiggins, 905 F.2d at 53-54. Finally, neither Appellant
received an upward departure, and there is no allegation that the
Government breached any obligation under the agreements. Because
Appellants only raise sentencing issues, which are clearly barred
by the waiver provision of their plea agreements, we will enforce
the waiver and dismiss the appeal. Blick, 408 F.3d at 168-70. 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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