                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4014


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KIM JENKINS BRANDVEEN,

                Defendant - Appellant.



                             No. 12-6185


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KIM JENKINS BRANDVEEN,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:11-cr-00149-HEH-1)


Submitted:   June 28, 2012                 Decided:   August 15, 2012


Before SHEDD, KEENAN, and DIAZ, Circuit Judges.
No. 12-4014 affirmed; No. 12-6185 dismissed by unpublished per
curiam opinion.


Vaughan C. Jones, JOHNSON & JONES, LLP, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Michael C.
Moore, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           Kim     Jenkins     Brandveen      pleaded    guilty          pursuant       to    a

written plea agreement to tax evasion, in violation of 26 U.S.C.

§ 7201 (2006).         The district court sentenced Brandveen to five

years’ imprisonment and three years’ supervised release.                                    The

district   court       also    ordered    Brandveen          to    pay     the       Internal

Revenue Service $2,122,897.82 in restitution.                           Brandveen timely

appeals the criminal judgment and the restitution order.

           Brandveen      challenges      the       district       court’s       denial      of

her   motion     to   withdraw    her    guilty       plea        and    the     amount      of

restitution ordered.           For the reasons that follow, we conclude

that the district court did not abuse its discretion in denying

Brandveen’s      motion   to   withdraw       her    guilty       plea,    and       thus    we

affirm the criminal judgment.              And, because we agree with the

Government that Brandveen’s appeal of the restitution order is

foreclosed by the valid appeal waiver set forth in her plea

agreement, we dismiss her appeal of that order.



                                         I.

           We first consider whether the district court abused

its discretion in denying Brandveen’s motion to withdraw her

guilty   plea.        Brandveen   argues      that     her    attorney,          a    federal

public defender, employed abusive and coercive tactics to induce

Brandveen to plead guilty, and thus that her guilty plea was

                                          3
involuntary.       The district court rejected this contention after

conducting a thorough hearing on the motion.

            “A    defendant      has    no        absolute      right    to       withdraw    a

guilty plea.”       United States v. Bowman, 348 F.3d 408, 413 (4th

Cir.     2003)    (internal      quotation             marks   omitted).           Once     the

district court has accepted a defendant’s guilty plea, it is

within    the    court’s     discretion           whether      to   grant     a    motion    to

withdraw it.        United States v. Battle, 499 F.3d 315, 319 (4th

Cir. 2007).       This Court closely scrutinizes the Fed. R. Crim. P.

11 colloquy and, if properly conducted, “a strong presumption

that the plea is final and binding” attaches.                           United States v.

Nicholson, 676 F.3d 376, 384 (4th Cir. 2012) (internal quotation

marks omitted).

            Brandveen acknowledges that her claim of coercion is

entirely inconsistent with her assertions, under oath, at the

Rule 11 hearing, which are presumed to be truthful.                               See United

States    v.     Lemaster,      403    F.3d       216,     221-22      (4th       Cir.    2005)

(explaining that, absent compelling evidence to the contrary,

“the truth of sworn statements made during a Rule 11 colloquy is

conclusively      established”).           The         district     court     conducted       a

comprehensive      Rule    11    hearing          in    this   case,    taking       care    to

ensure that Brandveen was knowingly and voluntarily agreeing to

plead guilty.       The court offered Brandveen many opportunities to

report her attorney’s allegedly coercive behavior, but she did

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not avail herself of those chances.           Although Brandveen implores

us to look “beyond the spoken words of the hearing” (Appellant’s

Br. at 12), we will not do so as “courts must be able to rely on

the defendant’s statements made under oath during a properly

conducted Rule 11 plea colloquy.”             LeMaster, 403 F.3d at 221.

We therefore presume that Brandveen’s guilty plea is “valid and

binding.”      Nicholson, 676 F.3d at 384.

            The inquiry then becomes whether Brandveen established

a “fair and just” reason for withdrawing the plea.                   Id.; see

Fed. R. Crim. P. 11(d)(2)(B).              To aid in this analysis, this

Court has announced a six-factor test.               See United States v.

Moore,   931    F.2d   245,   248   (4th   Cir.   1991).    Under    Moore,   a

district court considers:

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

Id.   Although all of the Moore factors should be considered, the

critical factor is whether the plea was knowing and voluntary,

which again hinges on the Rule 11 colloquy.                United States v.

Faris,   388    F.3d   452,   456   (4th   Cir.   2004),   vacated   on   other

grounds, 544 U.S. 916 (2005).              We review a district court’s


                                       5
denial    of    a    motion     to     withdraw       a   guilty      plea      for    abuse    of

discretion.         United States v. Ubakanma, 215 F.3d 421, 424 (4th

Cir. 2000).

               We have thoroughly reviewed the record in this case,

including the transcripts of the Rule 11 hearing and the hearing

on Brandveen’s motion to withdraw her guilty plea.                                    We discern

no abuse of discretion in the court’s weighing of the Moore

factors    or       the     resulting      denial         of   Brandveen’s            motion   to

withdraw her guilty plea.               We thus affirm the criminal judgment.



                                            II.

               Brandveen        next     contends         that      the        district    court

erroneously         calculated       the    restitution             amount       by    including

losses    outside         the   offense    of       conviction.           In    response,      the

Government asserts that Brandveen waived appellate review of the

restitution order through the waiver of her right to appeal “any

sentence within the statutory maximum . . . on the grounds set

forth in [18 U.S.C. § 3742 (2006)] or on any ground whatsoever.”

(J.A. 74). *        We agree.

               A defendant may, in a valid plea agreement, waive the

right to appeal her sentence under 18 U.S.C. § 3742.                                      United


     *
       Citations to the                 “J.A.”       refer     to    the       joint    appendix
submitted by the parties.



                                                6
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010); United

States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                               This Court

reviews the validity of an appellate waiver de novo, and will

enforce the waiver if it is valid and the issue appealed is

within the scope of the waiver.                         United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).

              An appeal waiver is valid if the defendant knowingly

and intelligently agreed to it.                         Id. at 169.            To determine

whether a waiver is knowing and intelligent, this Court examines

the     background,      experience,       and          conduct      of     the      defendant.

United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.

1995).      “An appeal 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. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)

(internal quotation marks omitted).                        Ultimately, however, the

issue    is    “evaluated      by      reference          to   the        totality     of   the

circumstances.”          United States v. General, 278 F.3d 389, 400

(4th Cir. 2002).

              The   totality      of    circumstances          in    this      case     clearly

demonstrates that Brandveen validly waived her right to appeal

her sentence.        As previously discussed, Brandveen’s guilty plea

                                               7
was voluntary, and there is no doubt that Brandveen knowingly

agreed to plead guilty, with a full understanding of the terms

of the appeal waiver.               The language of the plea agreement is

clear    and    unambiguous,         and     the     district          court    questioned

Brandveen to ensure that she had read and understood the plea

agreement prior to signing it.                     The court also discussed the

scope of the appeal waiver with Brandveen.                             We thus hold that

the waiver is valid and enforceable as it was knowingly and

voluntarily accepted.             See Blick, 408 F.3d at 169.

              The final issue, then, is whether the argument raised

on   appeal    falls    within      the    scope     of    the     waiver.        Brandveen

acknowledges that the district court had statutory authority to

order   restitution,         but    posits       that     the    court    exceeded    that

authority by ordering restitution in an amount that encompassed

conduct beyond the offense of conviction.

              While framed in terms of the court’s authority, at its

core, Brandveen’s argument attacks the district court’s fact-

based determination as to which losses should be included as

part    of    the    “offense       of    conviction.”            Because       Brandveen’s

challenge to what should be included in determining the loss

amount does not implicate the court’s statutory authority to

order   restitution,         we    hold    that    the     asserted       error    squarely

falls within the scope of the appeal waiver.                           See United States

v.   Cohen,    459    F.3d    490,       498-500    (4th        Cir.    2006)    (rejecting

                                             8
defendant’s attempt to restrict the scope of the “offense of

conviction” to those acts “specifically defined by the factual

basis of his plea contained in the plea agreement” and holding

that, because the restitution award was within the scope of the

district   court’s      authority,    the   appellate    challenge      to    the

amount of that award was within the ambit of the appeal waiver

(internal quotation marks omitted)).            We therefore dismiss the

appeal of this issue.

           For    the   foregoing    reasons,     we   affirm   the   criminal

judgment and we dismiss the appeal of the restitution order.                   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.



                                                        No. 12-4014 AFFIRMED
                                                       No. 12-6185 DISMISSED




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