                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4926


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARLON PETTAWAY, a/k/a Chrome,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:09-cr-00017-MSD-FBS-1)


Submitted:   February 23, 2011            Decided:   March 17, 2011


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


Affirmed by unpublished per curiam opinion.


Stephen A. Hudgins, STEPHEN A. HUDGINS, PC, Newport News,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Scott W. Putney, Assistant United States Attorney,
Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Marlon Pettaway appeals his conviction and 408-month

sentence    for   one     count   of   retaliation            against   a   witness   in

violation of 18 U.S.C. § 1513(b)(1) (2006).                      His sole contention

on appeal is that the district court erred in denying his motion

to withdraw his guilty plea.               The Government has filed a brief

urging the court to dismiss Pettaway’s appeal as barred by the

appellate waiver in Pettaway’s plea agreement.                       For the reasons

that follow, we affirm.



                             I.    Appellate Waiver

            Pursuant to a plea agreement, a defendant may waive

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

States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                           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 (citation omitted).

            While the Government is correct that Pettaway agreed

to waive his right to appeal his conviction and sentence, this

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court has held that where, as here, an appellant challenges the

denial of his motion to withdraw his guilty plea on the basis

that the plea was not knowing or voluntary, an appeal waiver

does not prevent this court from hearing the appeal.                             See United

States     v.     Craig,    985    F.2d     175,       178    (4th Cir. 1993).             We

therefore       decline    the    Government’s         invitation        to   dismiss      the

appeal.



                    II.     Motion to Withdraw Guilty Plea

             Pettaway      argues     that       the    district         court    erred    in

denying his motion to withdraw because at the time he entered

the guilty plea, he was suffering from an undiagnosed case of

sarcoidosis, an autoimmune condition.                        Pettaway claims that he

was   so   fatigued,       and    under   such     stress       as   a    result    of     the

condition, that he chose to plead guilty rather than endure the

hardship of a trial.               He claims that after the disease was

diagnosed and treated, he has able to fight the charges, and,

thus moved to withdraw the plea.

             The district court’s denial of a motion to withdraw a

guilty     plea    is     reviewed    for    abuse       of    discretion.           United

States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).                                    “[A]

defendant does not have an absolute right to withdraw a guilty

plea, even before sentencing.”               United States v. Moore, 931 F.2d

245, 248 (4th Cir. 1991).             Instead, he must show that a “fair

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and just reason” supports his request to withdraw his plea.                                  Id.

“[A]   ‘fair    and      just’      reason      .    .    .    is    one    that    essentially

challenges     .    .    .    the    fairness        of       the    Rule    11    proceeding.”

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

banc).

           In      determining            whether         Pettaway         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.               Although all the factors in Moore must

be given appropriate weight, the key in determining whether a

motion to withdraw should be granted is whether the Fed. R.

Crim. P. 11 hearing was properly conducted.                                 United States v.

Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).                               This court closely

scrutinizes        the       Rule    11    colloquy            and    attaches       a   strong

presumption that the plea is final and binding if the Rule 11

proceeding was adequate.              Lambey, 974 F.2d at 1394.

           We have reviewed the Moore factors and conclude that

Pettaway   has      not      carried      his       burden.          Pettaway      argues    that

because he was ill, the plea could not have been a voluntary


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decision.       We   do    not    agree.         The   illness      did    not     affect

Pettaway’s     ability     to    reason     or   understand      the      plea    he   was

entering.      Rather, even taking Pettaway’s assertions as true, it

merely influenced his decision to plead guilty.                            It did not

render the decision involuntary.                  Moreover, Pettaway has not

credibly asserted his innocence, there was a significant delay

between the entry of the plea and the motion to withdraw the

plea,    he    had   close       assistance      of    counsel,      and     both      the

Government and the courts would be burdened by allowing him to

withdraw his guilty plea.             Based on our consideration of the

Moore factors, therefore, we conclude the district court did not

err in denying the motion to withdraw the guilty plea.

              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




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