                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4686


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS MARSHALL BYRD,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00203-WO-1)


Submitted:   August 29, 2014                 Decided:   September 9, 2014


Before NIEMEYER and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


Ferris R. Bond, BOND & NORMAN, Washington, D.C., for Appellant.
Ripley Rand, United States Attorney, Randall Galyon, Assistant
United States Attorney, Rebecca Fitzpatrick, Special Assistant
United   States  Attorney,  Greensboro,  North   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Thomas Marshall Byrd pled guilty pursuant to a written

plea       agreement   to   conspiracy   to    distribute       cocaine    base,   21

U.S.C. § 846 (2012) (object one of Count One), and possession of

a firearm in furtherance of a drug trafficking crime, 18 U.S.C.

§ 924(c)(1)(A)(i)           (2012)   (Count    Five).       He     was    initially

sentenced to 322 months’ imprisonment, which included a five-

year consecutive mandatory sentence on the firearm conviction.

On   appeal,     this    court   granted      the   parties’     joint    motion   to

remand in light of Dorsey v. United States, 132 S. Ct. 2321,

2328-29 (2012) (holding that a defendant sentenced after the

effective date of the Fair Sentencing Act (“FSA”) for an offense

committed before the FSA’s effective date should be sentenced

pursuant to the FSA).

               At resentencing, Byrd challenged the use of two of his

convictions       as    predicate    offenses       for   the    career    offender

enhancement; the use of a revised drug quantity stipulation; 1 and


       1
       In his plea agreement, Byrd stipulated to five kilograms
or more of cocaine base as it pertained to object one of Count
One.   At the Fed. R. Crim. P. 11 hearing, the district court
asked Byrd—and Byrd confirmed—that the substance involved in
object one of Count One was in fact five kilograms of cocaine
base. In the PSR, however, the probation officer corrected the
stipulated drug quantity to 280 grams of crack cocaine,
explaining that “the government has indicated that the 5
kilogram amount was a mistake and that 280 grams of cocaine base
is the correct amount.” Thereafter, at sentencing, the district
court ensured that Byrd understood the ramifications of pleading
(Continued)
                                         2
the validity of his guilty plea on Count Five.               The court denied

the objections to the PSR, and after construing Byrd’s challenge

to his guilty plea on Count Five as a motion to withdraw his

guilty plea, denied the motion.           The court imposed a downward

variance sentence of 180 months on Count One and a sixty-month

consecutive   term    on   Count   Five   for   a   total    of   240   months’

imprisonment.

          On appeal, Byrd asserts that the district court abused

its discretion by denying his motion to withdraw his guilty plea

as to Count Five on the grounds that (1) the court did not

inquire as to whether he understood that he could be deemed a

career offender leading to a more severe Guidelines range; (2)

his plea was not entered knowingly and voluntarily because he

mistakenly stipulated to having distributed five kilograms of

cocaine base; and (3) he reasonably believed the Government had

agreed not to use his conviction when he was seventeen years old

to designate him a career offender and enhance his sentence.

Second, he disputes his career offender designation.                Third, he

challenges    the    substantive    reasonableness      of    his   sentence.

Last, he requests he be relieved of the appellate waiver in his

plea agreement because his “unreasonable sentence resulted in a



to the revised amount. Byrd stated he wished to plead guilty to
the lower, more favorable, quantity.



                                     3
miscarriage of justice.”            We affirm in part, and because we will

enforce   the     appeal      waiver   as       to   Byrd’s   sentence,         dismiss       in

part.

               This   court    reviews      a    district     court’s          denial    of    a

motion    to    withdraw      a   guilty        plea    for   abuse       of    discretion.

United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).

“A defendant has no absolute right to withdraw a guilty plea[.]”

Id. at 383-84 (internal quotation marks omitted).                              Instead, the

defendant bears the burden of “show[ing] a fair and just reason”

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

Nicholson, 676 F.3d at 383.

               This court has outlined six factors that the district

court    should       evaluate    to   determine         whether      a    defendant          is

entitled to withdraw his guilty plea:

     (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.

United    States      v.   Moore,   931     F.2d       245,   248   (4th       Cir.     1991).

While all the factors noted in Moore should be considered, the

key factor to determining whether a motion to withdraw should be




                                            4
granted is whether the Rule 11 hearing was properly conducted.

Nicholson, 676 F.3d at 384.

            As noted by the Government on appeal, Byrd rests on

only one Moore factor, i.e., that his plea was not knowing and

voluntary. 2     Byrd claims that, because he was never informed by

the court during his plea hearing that he may qualify as a

career offender and therefore face a lengthier sentence, his

plea was not knowing and voluntary.               Although, admittedly, Rule

11 requires a district court to notify a defendant during the

plea colloquy of all potentially applicable statutory minimum

and maximum sentences, it “does not require courts to inform

defendants     of    the   applicable   Guidelines    sentencing     ranges[.]”

United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008).

            Next,     Byrd    argues    his   plea    was    not   knowing     and

voluntary because the plea agreement and plea colloquy referred

to an incorrect stipulated drug quantity as to Count One.                    Byrd

argues that the stipulation as to drug quantity on Count One

affected the involuntariness of his conviction on Count Five

regarding      the   firearm.     He    asserts    that     such   confusion   is


     2
       Although Byrd agreed to waive his right to appeal his
convictions in his plea agreement, a defendant’s waiver of
appellate rights cannot foreclose a colorable constitutional
challenge to the voluntariness of the guilty plea. See, e.g.,
United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir.
1994).



                                        5
evidence    that      his    plea    was     not       knowing    and    voluntary.        The

district court discussed at length the ramifications of altering

the    stipulated        amount     and     ensured       that    Byrd     understood      the

change­a change that was of great advantage to Byrd­and that the

revised stipulation was knowing and voluntary.                                 We therefore

reject this argument.

              Last,       Byrd     argues     his       plea     was    not     knowing    and

voluntary       because       he     reasonably          believed       the     Government’s

promise not to file an Information of Prior Conviction meant

that the conviction would not be used to designate him a career

offender.       In light of Byrd’s statements under oath, which are

entitled    to      “a    strong    presumption          of    verity,”       Blackledge    v.

Allison,      431     U.S.    63,    74     (1977),       Byrd’s       misapprehension      is

belied by the record.               Byrd stated during the Rule 11 hearing

that he understood that his Guidelines range would be calculated

after the preparation of the presentence report.                                We conclude

the district court did not abuse its discretion in determining

that   Byrd     failed       to    establish       a    “fair     and    just    reason”    to

support his request to withdraw his guilty plea.

              Byrd’s challenges to his sentence are foreclosed by

his appeal waiver.            In his plea agreement, Byrd agreed to waive

his    right     to      appeal     “whatever          sentence    is    imposed     on    any

ground.”       We review the validity of an appellate waiver de novo.

United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.

                                              6
denied, 134 S. Ct. 126 (2013).                Where the Government seeks to

enforce an appeal waiver, this court will enforce the waiver if

it was knowing and intelligent and the issues raised on appeal

fall within its scope.            United States v. Davis, 689 F.3d 349,

354–55 (4th Cir. 2012); see United States v. General, 278 F.3d

389, 400 (4th Cir. 2002) (stating that, in determining whether

appeal    waiver    is    knowing     and     intelligent,        court    examines

“totality of the circumstances”).                Generally, if the district

court fully questions a defendant regarding the waiver of his

right to appeal during the Rule 11 colloquy and a review of the

record reveals that the defendant understood the full import of

the waiver, the waiver is both valid and enforceable.                     Copeland,

707 F.3d at 528.

            Based   on     the    totality       of    the     circumstances,      we

conclude that Byrd knowingly and voluntarily waived his right to

appeal his sentence on the grounds raised on appeal and, at the

Government’s    urging,     we    will    enforce      the    waiver.      Thus,   we

dismiss   the   appeal     from    that   part    of    the    judgment    imposing

sentence.

            Accordingly, we affirm in part and dismiss in part.

We   dispense   with     oral    argument     because    the    facts     and   legal




                                          7
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.


                                                        AFFIRMED IN PART;
                                                        DISMISSED IN PART




                                   8
