                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4846



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DAVID CARL THOMPSON, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-477)


Submitted:   August 10, 2005            Decided:   September 15, 2005


Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Terry F. Rose, Smithfield, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Michael F. Joseph, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          David Carl Thompson, Jr., pled guilty to one count of

possession with intent to distribute crack cocaine, in violation of

21 U.S.C. § 841(a)(1) (2000), and one count of possession of a

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

§ 924(c)(1)(a)(i) (2000), and was sentenced to 322 months in

prison.   His attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), raising three issues but stating

that, in his opinion, there are no meritorious issues for appeal.

Thompson was advised of his right to file a pro se informal brief,

but did not file such a brief.    The Government argues that this

court must enforce the waiver-of-appellate rights provision in

Thompson’s plea agreement.   We agree and dismiss the appeal.

          Thompson signed a written plea agreement containing the

following provision:

     [Thompson] expressly waives the right to appeal the
     conviction and whatever sentence is imposed on any
     ground, including any appeal right conferred by Title 18,
     United States Code, Section 3742(a), . . . excepting the
     defendant’s right to appeal based upon grounds of (1)
     ineffective assistance of counsel, (2) prosecutorial
     misconduct not known to the defendant at the time of the
     defendant’s guilty plea, (3) a sentence in excess of the
     statutory maximum, and (4) a sentence based on an
     unconstitutional factor, such as race, religion, ethnic
     origin and gender.

The plea agreement set forth the minimum and maximum sentence that

Thompson faced and made clear that the sentencing guidelines

applied and that the court would apply a sentence within those


                               - 2 -
guidelines    unless   there   was    a   basis   for    departure.   Thompson

admitted that he was guilty of the offenses charged and that the

Government could prove his guilt if the case proceeded to trial.

            Thompson and his attorney signed the agreement.                By

signing, Thompson acknowledged that he had read the agreement, had

reviewed it with his lawyer, understood it, and voluntarily agreed

to it.     Thompson also testified at the plea hearing that he was

voluntarily entering into the agreement and that he was in fact

guilty.

            At his Fed. R. Crim. P. 11 hearing, the district court

ascertained that Thompson was twenty-nine years old and had a tenth

grade education.     Thompson was not under the influence of drugs or

alcohol.    The court identified the rights that Thompson waived by

not going to trial, and specifically mentioned the right to appeal.

The court stated, “you give up any appeal right in this case in

exchange for the government’s dismissal of the other charges.              Do

you understand this, sir?”           Thompson stated that he did.          The

district     court   concluded   that     the     plea   was   knowingly   and

voluntarily entered and accepted Thompson’s guilty plea.

     On July 14, 2004, Thompson moved to change his plea to not

guilty.    He alleged that his attorney did not adequately represent

him and forced him into pleading guilty.           The court held a hearing

on August 5, 2004, and Thompson testified that he pled guilty in

April because he was concerned about his daughter’s safety after


                                     - 3 -
his family received threatening phone calls.               He disputed the

inculpatory statements he made at the time of his arrest.                   He

stated that he was not truthful when he testified at the plea

hearing that he was entering into the plea voluntarily and that no

one had threatened or coerced him into taking the plea.              He also

disputed the facts to which he stipulated in the factual basis for

his plea, with the exception of possession of two firearms.                 The

court denied the motion.         The court sentenced Thompson to 266

months of imprisonment on the possession with intent to distribute

count and a consecutive sixty-month sentence on the firearms count.

             In the Anders brief, counsel contends that the district

court    abused    its   discretion   in   denying    Thompson’s   motion   to

withdraw his plea, that the appeal waiver provision was unknowingly

made in light of United States v. Booker, 125 S. Ct. 738 (2005),

and that resentencing is required under Booker because the district

court     contemplated      sentencing        under   mandatory    sentencing

guidelines.       The Government replies that Thompson waived his right

to appeal.

        Where, as here, a defendant seeks to withdraw his guilty plea

before sentencing, he must demonstrate a “fair and just reason” for

withdrawal of the plea.         See Fed. R. Crim. P. 11(d)(2)(B).           “A

defendant has no ‘absolute right’ to withdraw a guilty plea, and

the district court has discretion to decide whether a ‘fair and

just reason’ exists upon which to grant a withdrawal.”                United


                                      - 4 -
States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003), cert. denied,

540 U.S. 1226 (2004).     This court reviews the denial of a motion to

withdraw a guilty plea for abuse of discretion.              United States v.

Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).

     Ordinarily, if the Rule 11 colloquy was properly conducted,

and the plea counseled and voluntary, the defendant will have “a

very limited basis upon which to have his plea withdrawn.” Bowman,

348 F.3d at 414.      Other factors that bear on whether there exists

a fair and just reason to withdraw a plea include:

     (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. at 414 (quoting United States v. Moore, 931 F.2d 245, 248 (4th

Cir. 1991)).

     We    conclude   that   the   district   court    did    not    abuse   its

discretion in denying Thompson’s motion to withdraw his plea. Most

importantly, the transcript of the Rule 11 proceeding supports the

district   court’s    conclusion    that   Thompson,   who     had   competent

counsel, entered his plea knowingly and voluntarily.                The charges

against Thompson, the rights that he would waive by pleading

guilty, and the penalties that he faced were explained to him, and

he testified under oath that he understood.                  In addition, he


                                   - 5 -
expressed satisfaction with his lawyer, with whom he had discussed

the case.    There is no credible assertion of legal innocence.       The

delay of three months between Thompson’s plea and his motion

requesting that he be allowed to withdraw his plea further weighs

against a grant of withdrawal.     There is nothing in the record to

suggest that Thompson had incompetent counsel throughout the plea

proceedings; indeed, he claimed to be fully satisfied with his

attorney’s services.    The district court, therefore, did not abuse

its discretion in denying the motion to withdraw.

            Thompson’s challenge to the waiver of appellate rights

provision in his plea agreement is governed by our recent decision

in United States v. Blick, 408 F.3d 162 (4th Cir. 2005).         The issue

in Blick was whether a waiver-of-appellate rights provision in a

plea agreement was enforceable after the Supreme Court’s decision

in Booker.    We employed a two-part analysis to decide the issue.

First, we considered whether the waiver was knowing and voluntary.

Having decided that it was, we asked whether the issues raised on

appeal were within the scope of that motion.          They were, and the

appeal was subject to dismissal.     Blick, 408 F.3d at 164.

            This court reviews de novo the validity of a waiver.

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).        Whether

a waiver of the right to appeal is knowing and intelligent depends

upon the facts and circumstances surrounding its making, including

the   defendant’s   background,   experience,   and   conduct.     United


                                  - 6 -
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992).       A waiver is

ineffective if the district court fails to question the defendant

about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.

1991), unless other evidence in the record shows that the waiver

was informed and voluntary.    Davis, 954 F.2d at 186.

          Here,   Thompson’s   waiver   was   clearly    knowing   and

voluntary.   He was twenty-nine, with a tenth-grade education, and

not under the influence of drugs or alcohol when he entered his

plea.   The district judge questioned him about the waiver of his

appellate rights, and Thompson stated that he understood what

rights he was waiving.   The details of the waiver were clearly set

forth in the written plea agreement, which Thompson had read,

discussed with his attorney, and understood.

             As required by Anders, we have reviewed the entire

record on appeal and have found no meritorious issues for appeal.

We therefore dismiss the appeal.   The court requires that counsel

inform his client, in writing, of his right to petition the Supreme

Court of the United States for further review.          If the client

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

a petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation.    Counsel’s motion must

state that a copy thereof was served on the client.       We dispense

with oral argument because the facts and legal contentions are




                                - 7 -
adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                         DISMISSED




                              - 8 -
