                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4052


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMADE BARSON JONES, a/k/a Jamade Derson Jones,

                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-00050-RLV-CH-1)


Submitted:   December 15, 2010            Decided:   January 21, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Reita P. Pendry, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Jamade Barson Jones appeals from his conviction and

162-month      sentence       entered       pursuant      to    his     guilty    plea   to

conspiracy to possess with intent to distribute cocaine.                                  On

appeal,     Jones         asserts    that     the     district        court      erred   by

(1) failing          to    provide     individualized           reasoning        for     his

sentence,       (2)       denying    his     motion    for      a     continuance,       and

(3) denying      his       motion    to     withdraw      his    guilty       plea.      The

Government asserts that Jones’ waiver of appellate rights in his

plea agreement bars claims (1) and (2).                   We affirm.



                                             I.

               It is well-settled that “a defendant may waive in a

valid plea agreement the right of appeal under 18 U.S.C. § 3742

[2006].”       United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.

1990).     “Whether a defendant has effectively waived the right to

appeal is an issue of law that we review de novo.”                                    United

States    v.    Blick,       408    F.3d    162,    168    (4th       Cir.    2005).      In

undertaking that review, we will enforce an appellate waiver

where such a waiver “is knowing and intelligent and the issue

sought    to    be    appealed      falls    within    the      scope    of    the    appeal

waiver.”       United States v. Poindexter, 492 F.3d 263, 270 (4th

Cir. 2007).          An appellate waiver is generally considered to be

knowing and intelligent where the court specifically questioned

                                              2
the defendant regarding the waiver during the Fed. R. Crim. P.

11   colloquy       and      the    record          indicates       that       the        defendant

understood the significance of the waiver.                          See United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

              Further,       only    a    “narrow          class     of      claims       involves

errors    that        the     defendant             ‘could        not     have        reasonably

contemplated’         when    the    plea           agreement       was      executed,”        and

therefore      are     excluded          from        the     scope        of        the    waiver.

Poindexter, 492 F.3d at 270.                  Claims that proceedings following

the guilty plea were conducted in violation of the defendant’s

Sixth Amendment right to counsel, see United States v. Attar, 38

F.3d 727, 732-33 (4th Cir. 1994), or that a sentence was imposed

in   excess    of     the    statutory        maximum        penalty       “or       based    on   a

constitutionally          impermissible         factor        such      as     race,”        United

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

the category of claims excluded from an appellate waiver.

              Here,     the    record         shows        that     the      district        court

questioned Jones regarding the appellate waiver provision at his

Rule 11 hearing, and Jones acknowledged that he agreed with and

understood the plea agreement.                       In addition, Jones signed the

plea agreement which included an unambiguous waiver of appellate

rights.     Moreover, Jones does not dispute the contention that he

knowingly     and     intelligently           waived       his     right       to    appeal     his

sentence.        Accordingly,            we   find         that    Jones       knowingly       and

                                                3
voluntarily        agreed      to   the    appellate          waiver;        therefore,       the

waiver is valid and enforceable.

             Jones does not dispute that Claim (1) is barred by his

waiver.      Thus, we dismiss this claim.                     The parties do, however,

disagree     as    to    whether    Jones’          claim    that      the   district       court

improperly denied his motion to continue sentencing in order to

find new counsel was waived by his plea agreement.                              As discussed

above, claims that proceedings following the guilty plea were

conducted in violation of the Sixth Amendment right to counsel

are not waivable.           Such is the claim raised here.                      Jones asserts

that   the    district         court,     in    denying       his      motion    to    continue

(which    was     filed    after    his        guilty     plea),       violated       his   Sixth

Amendment       right     to    counsel        of   his     own    choice.        See       United

States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (discussing

right to counsel of choice).                    Accordingly, this claim does not

fall   within      the    scope     of    Jones’        appellate        waiver       and   will,

instead, be reviewed on the merits.



                                               II.

             The     district       court’s          denial       of    a    continuance       is

reviewed for abuse of discretion.                         United States v. Williams,

445 F.3d 724, 739 (4th Cir. 2006).                        The trial court abuses its

discretion when its denial of a motion for continuance is “an

unreasoning and arbitrary insistence upon expeditiousness in the

                                                4
face of a justifiable request for delay.”                            Id.        In addition,

whether to grant a motion for substitution of counsel is also

within a court’s discretion.                  United States v. Corporan-Cuevas,

35 F.3d 953, 956 (4th Cir. 1994).                        In evaluating whether the

trial   court       abused      its     discretion       in    denying     a     defendant’s

motion for substitution of counsel, we must consider: (1) the

timeliness of the motion; (2) the adequacy of the inquiry into

the defendant’s complaint about his attorney; and (3) whether

the attorney/client conflict was so great that it resulted in

total   lack       of    communication       preventing        an   adequate       defense.

United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).

These factors are weighed against the district court’s “interest

in the orderly administration of justice.”                            Id. at 157.           In

addition,      a    district      court      has   wide       latitude     in    limiting   a

defendant’s right to counsel of choice based upon fairness and

the demands of the court’s calendar.                       Gonzalez-Lopez, 548 U.S.

at 152.

              Jones’ motion was untimely filed on the morning of

sentencing.        He had already replaced one attorney (and received

continuances to accommodate) and over a year had passed since he

was extradited.           The court made an adequate inquiry into the

basis   for    Jones’         motion,    allowing        him   to   explain       fully   the

reasons     for         his    dissatisfaction           with       his    attorney       and

questioning        the    attorney      as   to    why    certain     motions      were   not

                                              5
filed.       The record supports the conclusion that Jones and his

attorney were communicating, although they disagreed about the

best     course    of     action         to    take.           Moreover,          Jones’    sister

testified at the hearing that no other attorneys were interested

in taking the case because the case had been pending for so long

and    sentencing        was    imminent.              Because       the    district       court’s

ruling was not arbitrary, the court did not abuse its discretion

in denying Jones’ motion for a continuance.



                                               III.

              We review the district court’s denial of a motion to

withdraw      a   guilty       plea      for       abuse       of    discretion.            United

States v.       Dyess,    478       F.3d      224,       237   (4th        Cir.    2007).         The

defendant bears the burden of showing a “fair and just reason”

for    the    withdrawal       of    his      guilty         plea.         Fed.    R.    Crim.    P.

11(d)(2)(B).        “[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).             Courts         consider        six    factors       in

determining whether to permit the withdrawal of a guilty plea:

       (1)   whether the   defendant has  offered  credible
       evidence that his plea was not knowing or otherwise
       involuntary; (2) whether the defendant has credibly
       asserted his legal innocence; (3) whether there has
       been a delay between entry of the plea and filing of
       the motion; (4) whether the defendant has had close
       assistance of counsel; (5) whether withdrawal will

                                                   6
      cause prejudice to the government; and (6) whether
      withdrawal will inconvenience the court and waste
      judicial resources.

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).

An    appropriately         conducted         Rule           11        proceeding,      however,

“raise[s]    a     strong      presumption         that       the       plea    is     final   and

binding.”    Lambey, 974 F.2d at 1394.

            On appeal, Jones contends that his attorney lied to

him          at           the            time                     of           his         plea.
*
      As   such,    he    asserts      that       his    plea          was   not     knowing   and

voluntary.         However,     he   presents           no    evidence         aside    from   his

self-serving and conclusory statement.                            In fact, Jones does not

even explain what his attorney allegedly lied to him about or

how it affected the voluntariness of his plea.                                 In light of the

magistrate judge’s undisputed full compliance with Rule 11 in

accepting Jones’ guilty plea, Jones has not “offered credible

evidence     that        his    plea     was        not           knowing       or     otherwise

involuntary.”         Ubakanma,        215    F.3d       at       424.       Moreover,     Jones

informed the magistrate judge during the plea colloquy that he

was satisfied with his attorney and had not been threatened or


      *
       At the hearing on his motion to withdraw, Jones did not
precisely allege that his attorney lied to him.      Instead, he
asserted that he asked his attorney to move to withdraw his plea
and the attorney refused, that his attorney was not working in
his best interests, and that he did not receive all the
transcripts he requested.



                                              7
coerced to plead guilty, and his statements at the plea hearing

indicated that he entered the plea knowingly and voluntarily.

See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (conclusory

allegations in conflict with statements at Rule 11 hearing are

subject to summary dismissal); 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.”).

            Next, Jones does not, credibly or otherwise, assert

his legal innocence.            In addition, his motion to withdraw was

filed    years   after    he    entered       his   guilty      plea.      See    United

States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991) (finding that

six-week delay militated against withdrawal of plea).                             Jones’

assertion that he lacked close assistance of counsel is the only

Moore factor that might weigh in his favor; however, he has not

shown,    nor    does    the    record    reveal,        that    his    attorney      was

incompetent.       Finally,      allowing       Jones     to    withdraw       his    plea

likely would have prejudiced the Government and inconvenienced

the court due to the lengthy passage of time.                            We therefore

conclude that the district court did not abuse its discretion in

denying Jones’ motion to withdraw his guilty plea.

            Jones also asserts that he was entitled to withdraw

his guilty plea because, at the time of his motion, the plea had

not yet been accepted by the district court.                     See Fed. R. Crim.

                                          8
P. 11(d)(1) (a defendant may withdraw plea, for any reason or no

reason,     before   the    court     accepts      it).      Specifically,       Jones

asserts that, because his plea proceeding was conducted by a

magistrate judge, the district court was required to conduct a

de novo review of his plea.                 According to Jones, because the

district     court   did    not   conduct         the   required     review    of     his

assertion    that    his    attorney    had      lied   to   him,    the    magistrate

lacked the constitutional authority to accept his plea.

             However, Jones’ guilty plea had been accepted by the

magistrate    judge       following    an       undisputedly    complete      Rule     11

inquiry as well as a clear waiver of his right to have his plea

taken by the district court.                    A magistrate judge may accept

pleas in felony cases, provided the defendant consents and as

long   as   the   district     court    exercises       de   novo    review    of     the

magistrate judge’s decision upon request.                    See United States v.

Osborne, 345 F.3d 281, 289-90 (4th Cir. 2003) (holding that,

absent    request    or    objection,       district    court   is    not     bound   to

conduct de novo review).

             Although the magistrate judge’s acceptance of Jones’

guilty plea was subject to de novo review, it was still properly

entered years prior to his motion to withdraw his guilty plea.

The fact that the magistrate judge accepted the plea subject to

the district court’s review does not invalidate an adequate Rule

11 proceeding by a magistrate judge, or provide a defendant with

                                            9
the absolute right to withdraw.                See United States v. Williams,

23 F.3d 629, 634-35 (2d Cir. 1994).                       The court’s decision to

disallow   withdrawal      remains      subject         to    the    clearly     erroneous

standard of review.        Id.

               Moreover, Jones’ factual assertion that the district

court did not conduct de novo review when it failed to consider

his   allegations     is   unsupported        by    the       record.      As   discussed

above, Jones never alleged in district court that his attorney

lied to him.         The district court fully considered the grounds

for   withdrawal      raised     by    Jones       and       discussed    the    relevant

factors.       Further, Jones’ allegations had nothing to do with the

propriety of the magistrate judge’s Rule 11 hearing.                             Thus, as

Jones’    only    argument     in     support      of     his      assertion     that    the

district court failed to conduct a de novo review is meritless,

there    are    no   grounds     on   which     to       disregard       the    magistrate

judge’s acceptance of Jones’ plea.

               Accordingly, we affirm Jones’ conviction and sentence.

This court requires that counsel inform her 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

                                         10
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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