UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-4179

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSEPH ARDELL WHALEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis- trict of North Carolina, at Greenville. Terrence W. Boyle, Chief District Judge. (CR-97-22)

Submitted: September 15, 1998 Decided: October 7, 1998

Before MURNAGHAN, WILKINS, and NIEMEYER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Dean R. Davis, Wilmington, North Carolina, for Appellant. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Jane J. Jackson, 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Unpublished opinions are not binding precedent in this circuit.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:

Joseph Ardell Whaley pleaded guilty to one count of conspiracy

to possess with intent to distribute and to distribute metham-

phetamine in violation of

(1994). Whaley was subse-

quently sentenced to 46 months’ imprisonment and an ensuing five-

year term of supervised release. In his plea agreement, Whaley

agreed to waive his right to appeal whatever sentence the district

court imposed including any issues that relate to the establishment

of the Guideline range. On appeal, Whaley alleges that his sentence

was unjustifiably harsh compared to the probationary sentence re-

ceived by his co-defendant who allegedly had a greater involvement

in the drug conspiracy. He maintains that this disproportionate

sentence is due primarily to the Government’s failure to provide

him an adequate opportunity to furnish substantial assistance so

that he, like his co-defendant, could have also received a downward

departure. He was, however, interviewed by a government agent and

had the opportunity to provide information. We dismiss Whaley’s

appeal.*

During the Fed. R. Crim. P. 11 hearing, the court questioned

Whaley about the waiver provision contained in the plea agreement,

and Whaley stated that he understood the provision. A defendant may

* The Government’s argument that Whaley’s notice of appeal was untimely filed is without merit. Because the last day of the appeal period fell on a Sunday, Whaley’s notice of appeal was properly filed the next day. See Fed. R. App. P. 26(a).

2 waive his statutory right to appeal his sentence if the waiver is

knowing and voluntary. See United States v. Marin,

(4th Cir. 1992). For a waiver to be knowing and voluntary, the

district court should specifically question the defendant about the

waiver provision before accepting his plea. Whether the waiver is

effective is a legal question reviewed de novo. See

Based on

Whaley’s statements at the plea colloquy, we find that the waiver

was made knowingly and voluntarily.

We therefore dismiss the appeal. We dispense with oral argu-

ment because the facts and legal contentions are adequately pre-

sented in the materials before the court and argument would not aid

the decisional process.

DISMISSED

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