                   Certiorari granted, October 1, 2012
                Vacated by Supreme Court, October 1, 2012



                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5118


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TRACY BERNARD GIBSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00026-MR-4)


Submitted:   October 25, 2011               Decided:    November 8, 2011


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


James W. Kilbourne, Jr., DUNGAN LAW FIRM, P.A., Asheville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, Laura L. Ferris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Tracy    Bernard     Gibson         appeals   the     240-month      sentence

imposed following his guilty plea to conspiracy to possess with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 846 (2006).          On appeal, Gibson argues that the district court

abused    its    discretion       in     denying      his    motion    to   withdraw     his

guilty plea and that the 18 U.S.C. § 851 (2006) notice of prior

conviction was invalid.             The Government seeks enforcement of the

appellate waiver provision in the plea agreement and dismissal

of Gibson’s second argument.                   We affirm in part and dismiss in

part.

               Gibson first argues that the district court abused its

discretion in denying his motion to withdraw his guilty plea.

The district court may allow a defendant to withdraw his guilty

plea prior to sentencing if he “can show a fair and just reason

for   requesting        the   withdrawal.”              Fed.    R.    Crim.    P.    11(d).

However,    because      there      is       “no   absolute     right    to    withdraw    a

guilty plea, . . . the district court has discretion to decide

whether    a    fair    and   just       reason      exists.”         United   States     v.

Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (internal quotation

marks omitted); see United States v. Dyess, 478 F.3d 224, 237

(4th Cir. 2007) (reviewing denial of motion to withdraw guilty

plea for abuse of discretion).                      Upon review, we conclude that

the   district     court      did      not    abuse    its     discretion      in   denying

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Gibson’s motion to withdraw.                  See United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991) (enumerating six-factor balancing

test to determine propriety of permitting withdrawal); see also

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

banc) (stating that properly conducted plea colloquy “raise[s] a

strong      presumption        that    the     plea          is    final     and   binding”).

Accordingly, we affirm this portion of the appeal.

             The     Government        asserts          that      the      appellate    waiver

provision       in   the      plea    agreement         bars       our     consideration     of

Gibson’s remaining argument.                 We review a defendant’s waiver of

appellate rights de novo.              United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005).            “A defendant may waive his right to appeal

if   that    waiver      is    the    result       of    a    knowing       and    intelligent

decision to forgo the right to appeal.”                           United States v. Amaya-

Portillo, 423 F.3d 427, 430 (4th Cir. 2005) (internal quotation

marks omitted); see United States v. General, 278 F.3d 389, 400

(4th     Cir.    2002)     (providing        standard).                 Generally,     if   the

district court fully questions the defendant about the waiver

during the Federal Rule of Criminal Procedure 11 plea colloquy,

the waiver is valid and enforceable.                         United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005).                            We will enforce a valid

waiver so long as “the issue being appealed is within the scope

of the waiver.”        Blick, 408 F.3d at 168.



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               In   his   plea   agreement,      Gibson     agreed     to   waive   the

right to contest the conviction and/or the sentence except for

claims    of    ineffective      assistance      of    counsel    or   prosecutorial

misconduct.         Gibson asserts no error in the plea colloquy, nor

does he credibly challenge the validity of his appellate waiver.

Our review of the record leads us to conclude that Gibson’s

waiver was knowing and intelligent.

               Turning to the scope of the waiver, we conclude that

Gibson’s challenge to his sentence based on the validity of the

§ 851    notice     falls   within   the       scope   of   the   appellate    waiver

provision.       Thus, we dismiss this portion of the appeal.

               Accordingly, we affirm the district court’s judgment

in part and dismiss the remainder of the appeal as barred by the

waiver provision in the plea agreement.                     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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