                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4973


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

OMAR GUERRA, a/k/a Potato,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Margaret B. Seymour, District
Judge. (3:07-cr-00600-MBS-4)


Submitted:   October 21, 2010              Decided:   November 10, 2010


Before WILKINSON, KING, and DAVIS, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


James A. Brown, Jr., LAW OFFICES OF JAMES A. BROWN, JR., PA,
Beaufort, South Carolina, for Appellant.       Mark C. Moore,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Omar Guerra pled guilty, pursuant to a plea agreement,

to conspiracy to possess with the intent to distribute and to

distribute 1000 kilograms or more of marijuana, in violation of

21   U.S.C.    §    846    (2006).        Prior    to   sentencing,         Guerra      filed

several pro se motions to withdraw his guilty plea, which the

district      court    denied.        The    court      sentenced         Guerra    to    360

months’ imprisonment.             On appeal, Guerra’s counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), in

which he examines whether the district court erred in denying

Guerra’s motions to withdraw his guilty plea and concludes that

there are no meritorious issues for appeal.                         The Government has

moved   to    dismiss      Guerra’s       appeal   as    barred      by    the   appellate

waiver clause in his plea agreement.                         Neither Guerra nor his

counsel       has     challenged          directly      the     substance          of     the

Government’s motion; however, Guerra has filed a pro se brief,

in   which     he     maintains      that    his     plea     was    not    knowing      and

voluntary and that the Government breached the plea agreement.

We affirm in part and dismiss in part.

              Guerra argues that the Government breached the terms

of   his     plea     agreement      by    failing      to    move    for    a     downward

departure      based      on   his   substantial        assistance.          Although      a

breach of a plea agreement by the Government can invalidate an

appellate waiver, see generally Santobello v. New York, 404 U.S.

                                             2
257, 262 (1971), “no party is obligated to provide more than is

specified in the agreement itself.”                   United States v. Peglera,

33 F.3d 412, 413 (4th Cir. 1994) (citations omitted).                         In other

words, “the government is held only to those promises that it

actually made.”        Id.          Our review of the record leads us to

conclude that the Government did not breach either the spirit or

the letter of its bargain with Guerra.                 See id.

            Turning to the validity of the plea and the appellate

waiver, counsel identifies no error in the plea colloquy, but

Guerra asserts in his pro se supplemental brief that he did not

knowingly and voluntarily enter his guilty plea.                         Because Guerra

moved in the district court to withdraw his guilty plea on this

ground, “we review the voluntariness of a guilty plea de novo.”

United States v. General, 278 F.3d 389, 393 (4th Cir. 2002).

Our   review    of    the       record    reveals     that    the    district       court

complied    with     the       requirements     of   Fed.    R.     Crim.    P.   11    in

accepting Guerra’s guilty plea.

            Guerra     asserts,          however,    that     his     plea    was      not

voluntary   because        a    federal    agent     told    him    he    would   suffer

consequences if he did not sign the plea agreement offered by

the   Government.              We   conclude       that     Guerra’s       self-serving

statements, even if accurate, do not rise to the level of clear

and convincing proof that his plea was induced by coercion or

intimidation.        See Fields v. Att’y Gen., 956 F.2d 1290, 1299

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(4th Cir. 1992).      Moreover, the district court properly ensured

that    Guerra’s   guilty     plea     was    knowing    and    voluntary     and

supported by a sufficient factual basis.                See United States v.

DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).

            Having concluded that Guerra voluntarily entered his

guilty plea, we next must address the Government’s assertion

that he validly waived the right to appeal his conviction and

sentence.    This court reviews the validity of a waiver de novo,

United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000),

and will uphold a waiver of appellate rights if the waiver is

valid and the issue being appealed is covered by the waiver.

United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).                      A

waiver is valid if the defendant’s agreement to the waiver was

knowing and voluntary.         United States v. Marin, 961 F.2d 493,

496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165,

167 (4th Cir. 1991).         To determine whether a waiver is knowing

and    intelligent,   this     court    examines   “the       totality   of   the

circumstances,     including     the    experience      and    conduct   of   the

accused, as well as the accused’s educational background and

familiarity with the terms of the plea agreement.”                General, 278

F.3d at 400 (internal quotation marks omitted).

            Neither   Guerra    nor     his   attorney    alleges    that     the

district court committed any error at Guerra’s plea colloquy.

Guerra, however, asserts in his pro se brief that his plea and

                                        4
waiver were involuntary.               As discussed above, Guerra’s claim

that   the    agent     impermissibly         coerced       him   is   belied      by   the

record.

             With regard to whether the district court adequately

questioned Guerra about the waiver provision, “a waiver is not

knowingly or voluntarily made if the district court fails to

specifically        question     the     defendant          concerning       the   waiver

provision . . . during the Rule 11 colloquy and the record

indicates that the defendant did not otherwise understand the

full significance of the waiver.”                   United States v. Manigan, 592

F.3d 621, 627 (4th Cir. 2010).                    In light of the totality of the

circumstances, we hold that Guerra validly waived the right to

appeal his sentence.           Because any sentencing issues that may be

revealed     pursuant    to    our    review        under    Anders    are   barred,     we

grant the Government’s motion to dismiss in part and dismiss

Guerra’s appeal to the extent it relates to his sentence.

             Turning     to    the    validity       of     Guerra’s   waiver      of   the

right to appeal his conviction or to raise claims of ineffective

assistance     of    counsel     or    prosecutorial          misconduct      on   direct

appeal, we hold that the written waiver should not be enforced.

In its summary of the plea agreement, the Government did not

mention Guerra’s waiver of the right to appeal his conviction

and,   in    fact,     misstated       that       the   exception      to    the   waiver

provision for claims of ineffective assistance of counsel and

                                              5
prosecutorial         misconduct       applied           only       to    post-conviction

actions.      We therefore deny the Government’s motion to dismiss

in part      and    address     Guerra’s      claims         that   the   district     court

erred in denying his motions to withdraw his guilty plea and

that his attorney was ineffective.

              As to Guerra’s counsel’s argument that the district

court erred by denying Guerra’s motions to withdraw his guilty

plea, we initially note that withdrawal of a guilty plea is not

a matter of right.         United States v. Ubakanma, 215 F.3d 421, 424

(4th Cir. 2000).          The defendant bears the burden of showing a

“fair and just reason” for the withdrawal of his guilty plea.

Fed. R. Crim. P. 11(d)(2)(B).                “[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) (en banc).

              Courts consider six factors in determining whether to

permit the withdrawal of a guilty plea.                         See Ubakanma, 215 F.3d

at   424    (discussing       factors).           For    ineffective       assistance      of

counsel     to     constitute    a    fair    and       just    reason     to   withdraw    a

guilty plea, it must be of constitutional magnitude.                               Lambey,

974 F.2d at 1394; see United States v. Dyess, 478 F.3d 224, 237

(4th Cir. 2007) (setting forth standard for withdrawal of plea

based      upon    ineffective       assistance         of     counsel).        With   these

standards in mind, we conclude that Guerra failed to demonstrate

                                              6
ineffective assistance sufficient to warrant withdrawal of his

plea      and    hold      that   the       district   court     did     not   abuse     its

discretion by denying Guerra’s motions to withdraw his guilty

plea.      See Dyess, 478 F.3d at 237 (stating standard of review).

                Finally, in his pro se brief, Guerra argues that his

trial counsel was ineffective simply because he allowed Guerra

to plead guilty in the first place.                    To the extent this claim is

unrelated to the motion to withdraw, we cannot take cognizance

of   it    on    direct      appeal        because   neither    counsel’s      error     nor

prejudice to Guerra are conclusively apparent on the record.

See United States v. Baldovinos, 434 F.3d 223, 239 (4th Cir.

2006) (providing standard).

                Pursuant to Anders, we have reviewed the record for

any other meritorious claims that might fall outside the scope

of the enforceable portion of Guerra’s appellate waiver and have

found none.          Accord United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005) (discussing grounds for appeal not covered by

plea    bargain        appellate      waivers).        Accordingly,       we   grant     the

Government’s motion to dismiss in part and dismiss the appeal of

Guerra’s        sentence,       and    we     deny   the   Government’s        motion     to

dismiss in part and affirm the conviction.

                This    court     requires      that   counsel    inform       Guerra,    in

writing,        of   his    right     to    petition   the     Supreme    Court    of    the

United States for further review.                      If Guerra requests that a

                                                7
petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may renew his motion for leave

to withdraw from representation.      Counsel’s motion must state

that a copy thereof was served on Guerra.   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.

                                                AFFIRMED IN PART;
                                                DISMISSED IN PART




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