                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4104


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SCOTTIE LEE MARTINEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Jerome B. Friedman, Senior
District Judge. (2:10-cr-00122-JBF-TEM-1)


Submitted:   October 20, 2011             Decided:   November 15, 2011


Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Elizabeth M. Yusi, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Scottie     Lee    Martinez      appeals    his     conviction    and

sentence of 960 months’ imprisonment for production of child

pornography, in violation of 18 U.S.C. § 2251(a), (e) (2006),

and   18    U.S.C.        § 2256   (1),   (2)     (2006),     and   abusive    sexual

contact, in violation of 18 U.S.C. § 2244(a)(1), (c) (2006).

His sole contention on appeal is that the district court erred

in denying his motion to withdraw his guilty plea.                            For the

reasons that follow, we affirm. *

                This Court reviews for abuse of discretion a district

court’s denial of a motion to withdraw a guilty plea.                          United

States     v.    Dyess,     478    F.3d   224,   237   (4th    Cir.   2007).      The

defendant bears the burden of showing a “fair and just reason”


      *
      In its brief, the Government urges this Court to dismiss
Martinez’s appeal based on the appellate waiver contained in his
plea agreement. We have reviewed the record and conclude that,
while   the   district   court  carefully  questioned   Martinez
concerning his waiver of his right to appeal his sentence, no
mention was made that the terms of Martinez’s appellate waiver
also barred a challenge to his conviction. See United States v.
Wood, 378 F.3d 342, 349 (4th Cir 2004) (discussing a criminal
defendant’s reliance “on the district court’s characterization
of the material terms [of the plea agreement] disclosed during
the [Rule 11] hearing”); United States v. Wessells, 936 F.2d
165, 167-68 (4th Cir. 1991) (noting that if the district court
fully questions a defendant regarding the waiver during the
Federal Rule of Criminal Procedure 11 plea colloquy, the waiver
is generally both valid and enforceable). We therefore decline
the Government’s invitation to dismiss Martinez’s appeal, and
address Martinez’s claim on the merits.




                                           2
for withdrawing his guilty plea.                     Fed. R. Crim. P. 11(d)(2)(B);

United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007).

“[A]   ‘fair    and       just’       reason    .   .     .    is    one    that    essentially

challenges      .    .    .     the    fairness      of       the    Rule    11    proceeding.”

United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).

“[R]eversal         is    warranted      only       if    the       plea    proceedings      were

marred by a fundamental defect that inherently resulted in a

complete miscarriage of justice, or in omissions inconsistent

with rudimentary demands of fair procedure.”                                United States v.

Ubakanma,      215       F.3d    421,    425    (4th      Cir.       2000).        In    deciding

whether to permit withdrawal, a district court should consider:

       (1)   whether  the  defendant has  offered  credible
       evidence that his plea was not knowing or otherwise
       involuntary; (2) whether the defendant has credibly
       asserted his legal innocence; (3) whether there has
       been a delay between entry of the plea and filing of
       the motion; (4) whether the defendant has had close
       assistance of counsel; (5) whether withdrawal will
       cause prejudice to the government; and (6) whether
       withdrawal will inconvenience the court and waste
       judicial resources.

Ubakanma, 215 F.3d at 424.

            Although all the factors in Ubakanma should be given

appropriate     weight,          the    key    factor         in    determining         whether   a

motion to withdraw should be granted is whether the Rule 11

hearing was properly conducted.                      United States v. Bowman, 348

F.3d 408, 414 (4th Cir. 2003).                      This Court closely scrutinizes

the Rule 11 colloquy and attaches a strong presumption that the


                                                3
plea is final and binding if the Rule 11 proceeding is adequate.

Lambey, 974 F.2d at 1394.

            We    have    reviewed    the    Ubakanma     factors       and    conclude

that Martinez has not carried his burden.                       Although Martinez

made a bare assertion of legal innocence, we have thoroughly

reviewed the record and find no error in the district court’s

determination      that     Martinez’s       claim       was    not     entitled     to

credence.      Moreover, Martinez has not alleged any defect in his

Rule 11 proceeding; there was a significant delay between the

entry of the plea and the motion to withdraw the plea; and

Martinez had close assistance of counsel.                     While we acknowledge

the district court’s finding that neither the Government nor the

courts would be overly burdened by allowing Martinez to withdraw

his guilty plea and proceed to a trial, we agree that, given the

soundness of Martinez’s guilty plea and the lack of credible

evidence    supporting      his      assertion     of     legal      innocence,     the

Ubakanma factors, taken as a whole, support the district court’s

rejection of Martinez’s motion to withdraw.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    conclusions      are   adequately       presented      in    the     materials

before   the     Court   and    argument     would      not    aid    the   decisional

process.

                                                                               AFFIRMED

                                         4
