                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4964


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

COREY DEWAYNE KERR,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:11-cr-00219-NCT-1)


Submitted:   June 13, 2013               Decided:   September 23, 2013


Before GREGORY, SHEDD, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Harvey Alexander Carpenter, IV, LAW OFFICES OF H.A. CARPENTER
IV, Greensboro, North Carolina, for Appellant.      Ripley Eagles
Rand, United States Attorney, Graham Tod Green, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Defendant Corey Dewayne Kerr pled guilty to maintaining a

residence    for    the       purpose          of       manufacturing         or     distributing

cocaine base.           Approximately six months later, Defendant moved

to withdraw his plea, which the district court denied.                                     Finding

Defendant    accountable               for   2,414       grams    of    crack       cocaine,      the

district    court       sentenced            him    to    240    months       in    prison.        On

appeal,     Defendant         argues         that       the     district      court       erred   by

denying    his    motion          to    withdraw         his    plea    and    by    finding      him

accountable for 2,414 grams of crack cocaine.                                 For the reasons

discussed below, we affirm.



                                                   I.

     Following          a    law        enforcement            investigation         of     cocaine

distribution       in       two    North       Carolina          counties,         Defendant      was

indicted    for    conspiracy            to    distribute         280    grams       or    more   of

cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).

Seven months later, the government filed a bill of information

further charging Defendant with maintaining three residences for

the purpose of manufacturing or distributing cocaine base in

violation of 21 U.S.C. §§ 856(a)(1) and (b).                               In a written plea

agreement, Defendant agreed to plead guilty to maintaining a

drug-involved residence in exchange for the dismissal of the

conspiracy to distribute charge.

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     At Defendant’s plea hearing, the district court conducted a

Rule 11 plea colloquy during which it informed Defendant that

his attorney could not, at that point, accurately calculate his

sentencing      guideline     range.            Later     during     the      hearing,

Defendant’s attorney agreed that there was a factual basis for

Defendant’s plea, but noted that Defendant did not “agree to all

of   the   time    frames    and    [drug]       quantities”       alleged    by   the

government’s witness.         J.A. 61.          Defendant then pleaded guilty

at the plea hearing.

     Subsequently, Defendant sought to withdraw his guilty plea,

alleging that his attorney mislead him into pleading guilty by

failing    to     inform    him    about       possible     sentencing       outcomes.

Following a hearing, the district court found that Defendant was

properly advised that his attorney could not correctly estimate

his sentencing guidelines range before his guilty plea and that

his actual sentence could be above or below that range.                            The

court therefore denied Defendant’s withdrawal motion.

      At   Defendant’s       sentencing          hearing,     several        witnesses

testified about receiving various amounts of crack cocaine from

Defendant.      Based on that testimony, the district court found

Defendant accountable for 2,414 grams of crack cocaine.                            The

court then sentenced Defendant to 240 months imprisonment.

      On appeal, Defendant contends that the district court erred

by denying his motion to withdraw his guilty plea.                         He further

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argues that the district court erred by finding him accountable

for 2,414 grams of crack cocaine.



                                         II.

                                          A.

      Defendant first challenges the district court’s denial of

his motion to withdraw his guilty plea.                      We review the district

court’s denial of Defendant’s motion for abuse of discretion.

See   United    States    v.    Ubakanma,         215    F.3d   423,    424      (4th   Cir.

2000).

      A defendant may withdraw a guilty plea before sentencing if

he    can   show     a   fair    and     just       reason      for    requesting       the

withdrawal.        United States v. Nicholson, 676 F.3d 376, 383 (4th

Cir. 2012); Fed. R. Crim. P. 11(d)(2)(B).                       A properly conducted

Rule 11 guilty plea colloquy raises a strong presumption that

the plea is final and binding.                   Id. at 384.      When considering a

withdrawal     motion,    courts       typically         consider     (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

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waste judicial resources.            United States v. Moore, 931 F.2d 245,

248 (4th Cir. 1991).

      Defendant contends that he would not have pled guilty if

his   attorney     had     properly        advised       him     about      the     possible

sentencing outcomes.           Because Defendant does not challenge the

district court’s Rule 11 colloquy, there is a strong presumption

that Defendant’s plea is valid and binding.                          See Nicholson, 676

F.3d at 384.

      Turning to the Moore factors, we conclude that they do not

provide    a   fair     and   just    reason       for     withdrawing        Defendant’s

guilty    plea.       Regarding      the   first     and       fourth      factors,    while

Defendant argues that his attorney was ineffective, he has not

offered     credible     evidence      that     his       plea       was    unknowing     or

involuntary.       The district court told Defendant during his plea

hearing    that    it    would     later    determine          his    actual       sentence,

ranging     from    zero      to    twenty      years,         by    applying        federal

sentencing laws.          Further, it told Defendant that “there is no

way anybody today can accurately calculate whatever your Federal

Sentencing Guideline Range may eventually be . . . . Your lawyer

may be right, but he or she may be way off. . . . [I]f anybody

has suggested you’re going to receive a sentence of whatever,

understand that’s just an estimate.”                      J.A. 56-57.             As to the

remaining      relevant       factors,      they     do     not       favor       Defendant:

Defendant has not asserted his legal innocence and he filed his

                                            5
withdrawal     motion   approximately            six   months     after    his    guilty

plea.    Accordingly, we conclude that the district court did not

abuse its discretion by denying Defendant’s motion to withdraw

his guilty plea.



                                         B.

       Defendant next contends that the district court erred by

finding him accountable for 2,414 grams of crack cocaine.

       We review a sentence for abuse of discretion.                             Gall v.

United States, 552 U.S. 38, 51 (2007).                   Under this standard, we

first ensure that the district court committed no significant

procedural error, such as improperly calculating the Sentencing

Guidelines range.       Id.     In assessing whether a sentencing court

properly applied the Guidelines, we review the court’s factual

findings for clear error.              United States v. Osborne, 514 F.3d

377,    387   (4th   Cir.     2008).        If    a    sentence    is     procedurally

reasonable, we then consider the substantive reasonableness of

the sentence under an abuse-of-discretion standard.                         Gall, 552

U.S. at 51.

       For sentencing purposes, the government must prove the drug

quantity      attributable       to     a        particular       defendant       by   a

preponderance of the evidence.              United States v. Bell, 667 F.3d

431, 441 (4th Cir. 2011).             The district court is afforded broad

discretion as to what information to credit in making its drug

                                            6
quantity calculations.            United States v. Cook, 76 F.3d 596, 604

(4th Cir. 1996).           When the drug quantity is not proven by actual

seizures or comparable direct evidence, the sentencing court may

approximate the quantity.               Bell, 667 F.3d at 441.                 While courts

can    rely    on    lay   witness    testimony           as    to   the    drug    quantity,

courts should sentence at the low end of the witness’s range if

the witness’s approximation is uncertain.                        Id.

       At his sentencing hearing, Defendant testified that he sold

approximately 90 grams of crack cocaine during the relevant time

period.        But the government’s three witnesses testified that

Defendant sold them in excess of a total of 3,000 grams of crack

cocaine       during   that   time.        The      district         court    believed    the

government’s         witnesses    and    disbelieved            Defendant’s        testimony.

Moreover,       in     calculating       the       drug        amount      attributable    to

Defendant,      the    district      court     “gave       [Defendant]        the    benefit”

where the witnesses testified to a drug quantity range.                                   J.A.

263.     Given these facts, we cannot conclude that the district

court clearly erred by finding him accountable for 2,414 grams

of crack cocaine.


                                          III.

       For the foregoing reasons, we affirm Defendant’s conviction

and sentence.

                                                                                     AFFIRMED


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