                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5121


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MAYO LEVORD PICKENS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:07-cr-00960-HFF-1)


Submitted:   January 30, 2012               Decided:   May 8, 2012


Before SHEDD, DUNCAN, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded for resentencing
by unpublished per curiam opinion.


Kenneth C. Gibson, Greenville, South Carolina, for Appellant.
Leesa Washington, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Mayo Levord Pickens appeals his convictions and the

292-month       sentence   imposed       following      his    guilty       plea    to

conspiracy to possess with intent to distribute five kilograms

or more of cocaine and fifty grams or more of crack cocaine, in

violation    of    21   U.S.C.   §   841(a)(1),     (b)(1)(A)       (2006)   and    21

U.S.C. § 846 (2006), and conspiracy to commit money laundering,

in violation of 18 U.S.C. § 1956(h) (2006). Pickens's counsel

initially filed his brief pursuant to Anders v. California, 386

U.S. 738 (1967), averring that there were no nonfrivolous issues

for    appeal     but   asking   this    court    to    consider      whether      the

district court: (1) erred in conducting Pickens's Fed. R. Crim.

P.    11   plea    hearing;   (2)    abused   its      discretion      in    denying

Pickens's motion to withdraw his guilty plea; and (3) imposed a

reasonable sentence. Pickens filed a pro se supplemental brief

in which he asserted the Government breached the plea agreement.

             After conducting our Anders review of the record, we

identified three nonfrivolous issues: (1) whether the district

court erred in denying the additional one-level reduction for

acceptance of responsibility advocated for by the Government,

see U.S. Sentencing Guidelines Manual § 3E1.1(b) (2007); (2) the

adequacy of the district court's analysis of the 18 U.S.C. §

3553(a)     (2006)      sentencing       factors       and    its      concomitant

explanation       for   Pickens's       sentence;      and    (3)    whether       the

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Government   breached     the   plea     agreement       by   deferring       to   the

probation officer's presentence report as to a drug quantity

higher than that stipulated in the plea agreement and, if so,

whether   the    district    court's     failure    to    notice       this   breach

constituted plain error. We directed the parties to file merits

briefs addressing these issues.

            In   his   merits   brief,     Pickens's      attorney      asked      this

court to vacate Pickens's sentence and remand this case to the

district court for resentencing. The Government did not file a

merits brief, electing instead to move to remand this case for

resentencing. According to the motion, counsel for Pickens does

not object to the remand. For the reasons that follow, we affirm

Pickens's convictions as the issues raised in counsel's opening

Anders brief lack merit, but we grant the Government's unopposed

motion to remand, vacate Pickens's sentence, and remand this

case to the district court for full resentencing.

            Although    counsel     averred   in    his       Anders    brief      that

Pickens's plea colloquy was properly conducted, he nonetheless

asked us to review the Rule 11 hearing for any reversible error.

Based on our review of the record, we conclude the district

court substantially complied with the requirements of Rule 11 in

accepting    Pickens's      plea.   Moreover,      any    omissions      from      the

district court's Rule 11 colloquy do not amount to plain error.

See United States v. Vonn, 535 U.S. 55, 59 (2002) (holding that

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challenge to denial of motion to withdraw guilty plea based on a

ground   not    raised      in    district          court    is   reviewed    for    plain

error); see also United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004) (ruling that, to establish that a district court's

non-compliance       with    Rule     11       affected      substantial      rights,    a

defendant bears the burden of showing “a reasonable probability

that, but for the error, he would not have entered the plea”).

              Counsel's     Anders    brief          next    questioned      whether    the

district court abused its discretion in denying Pickens's motion

to withdraw his guilty plea, but ultimately concluded there was

no such abuse of discretion. We agree. Once the district court

has accepted a defendant's guilty plea, it is within the court's

discretion     whether      to    grant    a       motion    to   withdraw    it.   United

States   v.    Battle,      499    F.3d    315,        319    (4th   Cir.    2007).     The

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

for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B);

Battle, 499 F.3d at 319. “[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). This court reviews a district court's denial of

a motion to withdraw a guilty plea for abuse of discretion.

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

              When   considering       whether         to    allow    a   defendant     to

withdraw a guilty plea, the trial court must conduct the six-

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factor analysis announced in United States v. Moore, 931 F.2d

245,    248    (4th    Cir.   1991).   Under      Moore,    a    district   court

considers:

            (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.

Id.    Although       all   the   factors   in     Moore    should    be    given

appropriate weight, the key to determining whether a motion to

withdraw should be granted is whether the Rule 11 hearing was

properly conducted. United States v. Bowman, 348 F.3d 408, 414

(4th Cir. 2003); United States v. Puckett, 61 F.3d 1092, 1099

(4th Cir. 1995). Accordingly, this court closely scrutinizes the

Rule 11 colloquy and, if the Rule 11 proceeding is adequate, we

will attach “a strong presumption that the plea is final and

binding.” Lambey, 974 F.2d at 1394.

              As concluded earlier, the district court substantially

complied with the mandates of Rule 11 in accepting Pickens's

guilty plea. Therefore, the plea is presumed to be “final and

binding.”     Id.     Moreover,   Pickens   has    failed   to    establish   the

existence of a “fair and just” reason for withdrawing the plea.

See Fed. R. Crim. P. 11(d)(2)(B). We thus conclude that the


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district court did not abuse its discretion in denying Pickens's

motion to withdraw his guilty plea. See Ubakanma, 215 F.3d at

424-25.

           Turning, finally, to Pickens's sentence, in light of

Pickens's agreement with the Government's position that remand

for resentencing is warranted, we grant the Government's motion

to remand, vacate Pickens's sentence, and remand this case to

the district court for a full resentencing hearing. On remand,

the parties are free to raise arguments relevant to the three

nonfrivolous   issues     we     identified   in    our    order   directing

supplemental briefing. However, should the parties pursue any of

those issues at resentencing, nothing in this opinion should be

construed as an indication of our view as to how the district

court should rule on those issues. We leave that task to the

district   court   in   the    first   instance.   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 IN PART,
                                                        VACATED IN PART,
                                           AND REMANDED FOR RESENTENCING




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