UNITED STATES of America, Plaintiff-Appellee, v. Shirley A. MCDONALD, Defendant-Appellant, 142 F. App'x 691

PER CURIAM: Shirley A. McDonald pleaded guilty to conspiracy to defraud the Internal Revenue Service, in violation of 18 U.S.C. § 286 (2000), and was sentenced to thirty-seven months in prison. On appeal, she claims that her sentence violates United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The United States moves to dismiss based on McDonald’s waiver of her right to appeal her sentence. Because we find that the waiver was knowing and voluntary and because the issue McDonald seeks to raise on appeal lies within the scope of her waiver, we grant the motion and dismiss the appeal.

In her plea agreement, McDonald agreed: 9. To waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the Guideline range, reserving only the right to appeal from an upward departure from the Guideline range that is established at sentencing, ... excepting an appeal ... based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant’s guilty plea. (J.A. 17).

At McDonald’s Fed.R.Crim.P. 11 proceeding, the district court ascertained that McDonald had read the indictment, had discussed her case with her lawyer, was satisfied with her attorney’s services, and understood the rights she was waiving by pleading guilty. McDonald was fifty years old, a college graduate, and not under the influence of drugs or alcohol. McDonald was informed of the maximum possible penalty for the offense and the applicability of the sentencing guidelines. She stated that she was guilty of the offense and was pleading guilty voluntarily.

The district court inquired whether McDonald understood the terms of her appeal waiver; McDonald replied that she did. The court found that the plea was freely and intelligently made and accepted it. McDonald’s presentence report recommended a base offense level of six. Eight levels were added for amount of loss and four levels were added for McDonald’s role in the offense. With an adjusted offense level of 18 and a criminal history category of III, the resulting guideline range was 33 — 41 months. The maximum term of imprisonment to which she was statutorily subject was ten years. See 18 U.S.C. § 286.

The district court adopted the findings in the presentence report and sentenced her to thirty-seven months in prison. McDonald contends that the district court violated Booker when it enhanced her sentence by determining amount of loss and her role in the offense. However, we recently held in United States v. Blick, 408 F.3d 162 (4th Cir.2005), that a waiver-of-appellate-rights provision in a plea agreement is enforceable in the face of a Booker violation if the waiver was knowing and intelligent and if the issues raised by the defendant lie within the scope of the waiver. Id. at 169.

Under Blick, we conclude first that McDonald’s waiver was knowing and intelligent. She was fifty years old, a college graduate, and not under the influence of drugs or alcohol when she entered her plea. She had read the indictment, had consulted with an attorney, and was satisfied with her lawyer’s services. The terms of the appellate waiver were clearly set forth both in the plea agreement and at the Rule 11 proceeding, where they were specifically discussed. Having concluded that the waiver was knowing and intelligent, we next consider whether the issue raised on appeal lies within the scope of the waiver.

McDonald waived “whatever sentence is imposed, including any issues that relate to the establishment of the Guideline range, reserving only the right to appeal from an upward departure from the Guideline range.” On appeal, she objects to the district court’s determination of amount of loss and role in the offense under the guidelines-matters that plainly relate to the establishment of McDonald’s guideline range. Under Blick, this issue is waived. We therefore grant the United States’ motion to 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