                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4692


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ASHANTI RHAN HENRY, a/k/a A-1,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:12-cr-00024-JPJ-PMS-1)


Submitted:   December 23, 2014            Decided:   February 3, 2015


Before DUNCAN, THACKER, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville,
Virginia, for Appellant.     Timothy J. Heaphy, United States
Attorney, Zachary T. Lee, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Ashanti     Rhan     Henry           appeals      the     district       court’s

judgment finding him guilty of conspiring to possess with the

intent to distribute 280 grams or more of cocaine base and five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846

(2012).         Henry    contends        that       the     district      court       erred    by

accepting      his    guilty     plea    when,        he    claims,      it    was    not     made

knowingly and voluntarily, and by denying his motion to withdraw

his guilty plea.         We affirm.

               The Government suggests that the appellate waiver in

the plea agreement precludes Henry’s appeal of the denial of his

motion    to    withdraw     his      guilty        plea.        However,      a    “waiver     of

appeal rights in a plea agreement will not bar appellate review

of   [a   district       court’s]      denial        of    a    motion   to    withdraw       the

underlying       guilty        plea      when         the       plea-withdrawal             motion

incorporates a colorable claim that the plea agreement . . . is

tainted by constitutional error,” such as involuntariness or the

“lack of . . . effective assistance of counsel.”                               United States

v. Attar, 38 F.3d 727, 733 n.2 (4th Cir. 1994).                                     Because we

conclude       that     Henry’s     motion          to     withdraw      his       guilty    plea

presented a colorable claim that his plea agreement was tainted

by involuntariness and ineffective assistance of counsel, the

appellate      waiver     does     not    preclude             Henry’s   appeal       from    the

motion’s denial.

                                                2
            We review for abuse of discretion a district court’s

denial of a motion to withdraw a guilty plea.                    A defendant has

no absolute right to withdraw his guilty plea, and he bears the

burden of “show[ing] a fair and just reason” for doing so.                     Fed.

R. Crim. P. 11(d)(2)(B); see United States v. Nicholson, 676

F.3d 376, 383-84 (4th Cir. 2012).

            This     court   has     identified     six      factors   that    the

district court should evaluate in deciding whether to grant a

motion for withdrawal of a guilty plea.                 See United States v.

Moore, 931 F.2d 245, 248 (4th Cir. 1991).                    The district court,

upon reviewing these factors, concluded that Henry had failed to

make the necessary showing.           This ruling does not constitute an

abuse of the court’s discretion.

            Accordingly, we affirm the judgment of the district

court.     We grant Henry’s motion to file a pro se supplemental

brief,   but   have    found    no    meritorious      issues     therein.      We

dispense    with     oral    argument    because       the     facts   and    legal

conclusions    are    adequately     presented    in    the    materials     before

this court and argument would not aid the decisional process.



                                                                         AFFIRMED




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