                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-4667


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

YORBY MENDOZA,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:03-cr-00014-RLV-DSC-4)


Submitted:   June 17, 2011                    Decided:   July 8, 2011


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Matthew R. Segal, Assistant Federal Defender, Asheville,
North Carolina; Steven George Slawinski, Assistant Federal
Defender, Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Richard Lee Edwards, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Yorby Mendoza pled guilty to one count of conspiracy

to possess       with   intent    to   distribute         heroin    and   cocaine,   in

violation of 21 U.S.C. §§              841(a), 846 (2006).               Following his

Rule 11 hearing, Mendoza fled the United States.                            Over three

years later, he was arrested in Colombia and extradited.                          Upon

his    return,    the   district    court      held   a    sentencing      hearing   at

which Mendoza sought to withdraw his guilty plea.                         The district

court denied Mendoza’s motion and sentenced him to 159 months in

prison.      Mendoza appeals.      We affirm.

              On appeal, Mendoza first contends that the district

court erred in denying his motion to withdraw his guilty 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 and just

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

(internal quotation marks omitted).                 “[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).



                                           2
              In determining whether Mendoza has carried his burden,

the   court    considers         six   factors.       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 Rule 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.             Our review of the record leads us to conclude

that the district court did not abuse its discretion in denying

Mendoza’s motion to withdraw his guilty plea.

              Mendoza also claims that the district court erred in

not allowing him to withdraw his guilty plea pursuant to Fed. R.

Crim. P. 11(d)(1).              Specifically, Mendoza asserts that, because

his   plea    proceeding         was   conducted     by   a   magistrate        judge   and

Mendoza moved to withdraw his plea in the district court before

the district court accepted the plea, his plea had not yet been

accepted      and    he    was    entitled    to   withdraw        his   plea    “for   any

reason or no reason.”              Mendoza did not present this argument to

the district court and therefore, this claim is reviewed for

plain error.          United States v. Benton, 523 F.3d 424, 429 (4th

Cir. 2008).          Under this standard, this court may correct an

alleged error only if             “[t]here [was] an error that is plain and

                                             3
that affect[s] substantial rights.”            United States v. Olano, 507

U.S. 725, 732 (1993) (internal quotation marks omitted).                       In

Benton, this court found that where a defendant has consented to

having his plea accepted by a magistrate judge, he may not later

seek to withdraw his plea pursuant to Rule 11.                 Benton, 523 F.3d

at 433.    Because we conclude that Mendoza’s plea was valid, his

consent    to   enter   that   plea   before    the   magistrate       judge   was

likewise valid, and forecloses this claim.

            Accordingly, we affirm the judgment of the district

court.     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.

                                                                         AFFIRMED




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