                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4201


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERICK ROMAN, a/k/a Erick Javier Sierra, a/k/a Malian-T, a/k/a
King Malian-T,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:09-cr-00598-AW-1)


Submitted:   December 1, 2011             Decided:   January 5, 2012


Before WILKINSON, KING, and AGEE, Circuit Judges.


Dismissed in part and affirmed in part by unpublished per curiam
opinion.


Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland, for Appellant.      Emily Noel Glatfelter, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Erick     Roman    pled     guilty      in    a   Fed.    R.    Crim.    P.   11

hearing   to    one    count       of    conspiracy           to    participate      in    a

racketeering enterprise, in violation of 18 U.S.C. § 1962(d)

(2006).   He was sentenced to a term of 720 months in prison.                             In

accordance     with    Anders      v.   California,           386    U.S.   738     (1967),

Roman’s attorney has filed a brief certifying that there are no

meritorious     issues       for   appeal         but     questioning       whether       the

district court erred in denying Roman’s motion to withdraw his

guilty plea, whether Roman was properly classified as a career

offender pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 4B1.1   (2010),      and    whether     Roman’s         sentence     constituted        an

abuse of the district court’s discretion.                      Roman received notice

of his right to file a pro se supplemental brief, but has failed

to do so.      The Government has filed a motion to dismiss Roman’s

appeal pursuant to the terms of his plea agreement’s waiver of

appellate rights, by which Roman waives his right to appeal his

conviction and his sentence, reserving only the right to appeal

a term of imprisonment that exceeds life.                           For the following

reasons, we dismiss in part and affirm in part.

            Pursuant to a plea agreement, a defendant may waive

his   appellate     rights    under     18       U.S.C.    § 3742     (2006).        United

States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                               A valid

waiver will preclude appeal of a given issue if the issue is

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

F.3d 162, 168 (4th Cir. 2005).                        Whether a defendant validly

waived his right to appeal is a question of law that we review

de novo.    Id.

            “The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the

right to appeal.”            Id. at 169.            This determination, often made

based on the sufficiency of the plea colloquy and whether the

district court questioned the defendant about the appeal waiver,

ultimately       turns      on    an    evaluation         of     the    totality     of    the

circumstances.           Id.      These circumstances include all of “the

particular       facts      and    circumstances           surrounding        [the]        case,

including       the     background,        experience,            and    conduct     of     the

accused.”       Id. (internal quotation marks omitted).

            Here,       a   review       of     the      record    indicates       that     the

district     court      fully     complied          with    Rule    11    when     accepting

Roman’s plea and specifically reviewed the terms of his plea

agreement with him, including his appellate waiver.                                 Given no

indication in the record to the contrary, we find that Roman’s

waiver     of     appellate            rights       is     valid        and   enforceable.

Furthermore,          because     Roman’s           720-month      sentence        does     not

implicate the limited exception to his forfeiture of the right

to appeal his sentence, we find that the sentencing issues Roman

seeks to raise on appeal fall squarely within the compass of his

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appellate waiver.         Accordingly, we grant the Government’s motion

to dismiss Roman’s appeal of his sentence.

               We find, however, that Roman’s appellate waiver does

not prevent our review of the district court’s denial of Roman’s

motion to withdraw his guilty plea.                  A waiver of appeal rights

will not bar appellate review of denial of such a motion if it

contains a “colorable claim” that the plea agreement “is tainted

by constitutional error,” such as involuntariness or the lack of

the effective assistance of counsel.                  See, e.g., United States

v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994).                             Because

Roman’s motion to withdraw was premised on such claims, we deny

the Government’s motion to dismiss Roman’s appeal of the denial

of his motion to withdraw his plea.

               Turning to the merits of Roman’s claim, we review the

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

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

Cir. 2007).         In order to withdraw an otherwise valid guilty plea

before sentencing, a defendant must show that a “fair and just

reason”    supports      his    request   to    do    so.       Fed.       R.   Crim.   P.

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

1991).    We have defined a “fair and just” reason as one that in

essence    challenges         the   fairness   of     the     Rule    11    proceeding.

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

banc).         Where,    as    here,   the     district       court    substantially

                                          4
complies     with    the   requirements          of   Rule    11    in   accepting        a

defendant’s guilty plea, that defendant must overcome a strong

presumption that his guilty plea is final and binding.                              See id.

In determining whether the defendant has carried his burden, a

court considers six factors:

       (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.

Moore, 931 F.2d at 248.              We have reviewed the record in this

case and, after carefully considering the factors described in

Moore,    conclude     that    the   district         court   did    not      abuse     its

discretion      in   denying   Roman’s          motion   to   withdraw        his    guilty

plea.

            In accordance with Anders, we have reviewed the record

in this case, mindful of the scope of the appellate waiver, and

have    found   no   meritorious      issues       for    appeal.        We    therefore

affirm    Roman’s     conviction      and       sentence.      We    deny      counsel’s

motion to withdraw.            This court requires that counsel inform

Roman, in writing, of his right to petition the Supreme Court of

the United States for further review.                    If Roman requests that a

petition be filed, but counsel believes that such a petition


                                            5
would be frivolous, counsel may renew his motion for leave to

withdraw from representation.     Counsel’s motion must state that

a copy thereof was served on Roman.        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.



                                                 DISMISSED IN PART
                                              AND AFFIRMED IN PART




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