                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-4383


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

EDWARD DICKEY,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:10-cr-00305-LO-1)


Submitted:   September 26, 2011            Decided:   October 11, 2011


Before AGEE and     DIAZ,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Timothy D. Belevetz, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Edward Dickey appeals his convictions for bank fraud,

in violation of 18 U.S.C. § 1344(1)-(2) (2006), and aggravated

identity theft, in violation of 18 U.S.C. § 1028A (2006).                                His

sole contention on appeal is that the district court erred in

denying     his     motion      to     withdraw    his       guilty     plea.      For   the

following reasons, we affirm.

             As     an    initial      matter,     the       Government      suggests    that

Dickey’s appeal be dismissed as barred by the appellate waiver

in   his    plea     agreement.           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.

2006).     A waiver will preclude appeal of a specific issue if the

waiver is valid and the issue is 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 this court reviews de novo.                                Id. at 168.

“The   validity          of   an     appeal    waiver        depends    on     whether   the

defendant knowingly and intelligently agreed to waive the right

to appeal.”        Id. at 169.         An examination of the record indicates

that Dickey’s waiver was knowing and intelligent.

             Although the Government correctly asserts the validity

of   Dickey’s      appellate         waiver,    such     a    waiver    does     not   flatly

preclude appellate review of the district court’s denial of his

                                               2
motion to withdraw his plea.                  See United States v. Attar, 38

F.3d 727, 733 n.2 (4th Cir. 1994).                          An appellate waiver in a

plea   agreement       will    not    bar    appellate           review   of     a    district

court’s denial of a motion to withdraw the underlying guilty

plea when the motion 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 id.        On appeal, Dickey has persisted in his claims

that    his    plea     was    involuntary        due       to   the    coercion       of   his

counsel, that his attorneys withheld germane information from

him during the plea process, and that they improperly refused to

file certain motions on his behalf.                     These claims implicate both

the voluntariness of Dickey’s plea and the effectiveness of his

counsel during the plea process.                  Therefore, despite his failure

to produce credible evidence to support his contentions, Dickey

has    asserted       the    requisite      “colorable”          constitutional        claim.

See id.       Consequently, we decline the Government’s invitation to

dismiss the appeal.

              Turning to the merits of Dickey’s appeal, the district

court’s denial of a motion to withdraw a guilty plea is reviewed

for abuse of discretion.             United States v. Battle, 499 F.3d 315,

319 (4th Cir. 2009).             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.

                                             3
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 is the case here, the

district court substantially 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 Dickey has carried his burden,

the 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 the 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 Dickey’s motion to withdraw his guilty

plea.

             When conducting Dickey’s plea colloquy, the district

court substantially complied with the mandates of Rule 11, and


                                      4
nothing in the record credibly indicates that Dickey’s plea was

not knowing and voluntary.                While under oath, Dickey informed

the    district    court   that      he   was     not    entering     his   plea    under

threat and indicated that he had reviewed his plea agreement and

the Statement of Facts with counsel.                     He also acknowledged his

waiver of various trial rights and cognizance of the possible

sentences, fines, and restitution he could receive or be ordered

to    pay   if   he    chose   to    plead       guilty.       Such   statements     are

presumed to be true.             Blackledge v. Allison, 431 U.S. 63, 74

(1977); see Fields v. Attorney Gen., 956 F.2d 1290, 1299 (4th

Cir.    1992)     (“Absent       clear    and     convincing      evidence     to    the

contrary, a defendant is bound by the representations he makes

under oath during a plea colloquy.”).                    Additionally, contrary to

Dickey’s claims, our review of the record fails to reveal any

indication that his counsel endeavored to coerce him to plead

guilty.        Therefore, Dickey has not provided credible evidence

that his plea was not knowing and voluntary.

               We also find that Dickey has not plausibly asserted

his innocence.         His vague descriptions of the information that

he    claims     may   support      his   innocence      are    unsupported    by    the

record and fail to offer any indication that Dickey’s admissions

of guilt were false.           Similarly, the record does not contradict

Dickey’s       plea    colloquy       averments         indicating     that    he     was

satisfied with the assistance of his attorneys, and his claims

                                             5
with regard to the ineffectiveness of his counsel during the

plea process remain unsubstantiated.

            Moreover, Dickey delayed for almost two months from

the entering of his guilty plea before filing his motion to

withdraw his plea.        Although the district court did not address

this    delay   when    considering   Dickey’s      motion       to    withdraw     his

plea,    this    significant     period     of     delay    militates          against

allowing   its   withdrawal.       Moore,    931    F.2d     at       248.      Lastly,

allowing Dickey to withdraw his guilty plea would prejudice the

government and, as the district court noted, constitute a waste

of further judicial resources.            United States v. Sparks, 67 F.3d

1145, 1154 n.5 (4th Cir. 1995).

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    conclusions     are   adequately    presented       in       the     materials

before    the   court    and   argument    would    not    aid    the        decisional

process.

                                                                               AFFIRMED




                                       6
