                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                   No. 08-4574


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JOHN CURTIS EWELL,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Walter Dekalb Kelley,
Jr., District Judge. (4:07-cr-00069-WDK-FBS-2)


Submitted:        March 23, 2009                 Decided:   April 23, 2009


Before KING, DUNCAN, and AGEE, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant.       Dana J. Boente,
Acting United States Attorney, Richard Cooke, Scott W. Putney,
Assistant United States Attorneys, Cameron Rountree, Third Year
Law Student, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           John Curtis Ewell appeals his conviction and 420-month

sentence for conspiracy to distribute fifty grams or more of

cocaine base, five hundred grams or more of cocaine, and heroin,

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

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1) (2006).                       Ewell argues on appeal that

the district court erred in denying his motion to withdraw his

guilty plea, in finding that he breached his plea agreement, and

in overruling his objections to the court’s advisory sentencing

guidelines calculations.             We affirm his conviction and dismiss

his appeal of his sentence.



                                 I. Guilty Plea

               “A    defendant   has     no      absolute    right       to   withdraw    a

guilty plea.” United States v. Bowman, 348 F.3d 408, 413 (4th

Cir.   2003)    (internal    citation            and    quotation    marks      omitted).

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

essentially     challenges       .   .   .       the    fairness    of    the    Rule    11

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proceeding.”     United States v. Lambey, 974 F.2d 1389, 1394 (4th

Cir. 1992) (en banc).

            In deciding whether to permit a defendant to withdraw

his guilty plea, a district court considers:

      (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
      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)

(citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.

1991)) (footnote omitted).

            However, an appropriately conducted Rule 11 proceeding

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

binding.”    Lambey, 974 F.2d at 1394; see also United States v.

Puckett,    61   F.3d     1092,   1099     (4th     Cir.     1995).        Under    Rule

11(b)(1), the district court must address the defendant in open

court and inform him of the following: the nature of the charge;

any   mandatory     minimum       sentence       and    the     maximum       possible

sentence; the applicability of the Sentencing Guidelines; the

court’s     obligation      to    impose     a      special      assessment;        the

defendant’s right to an attorney; his right to plead not guilty

and be tried by a jury with the assistance of counsel; his right


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to confront and cross-examine witnesses; his right against self-

incrimination; and his right to testify, present evidence, and

compel the attendance of witnesses.               The defendant also must be

told that a guilty plea waives any further trial and that his

answers    at    the   proceeding     may    be     used    against    him    in     a

prosecution for perjury.           Under Rule 11(b)(2), the court must

address the defendant to determine that the plea is voluntary.

The court must require disclosure of any plea agreement under

Rule 11(c)(2) and determine a factual basis for the plea under

Rule 11(b)(3).

            For the first time on appeal, Ewell argues that his

plea was not knowing and voluntary because he was under the

influence of medication for his bipolar disorder.                  This claim is

not properly before this court because it was not presented to

the   district    court     when   Ewell    moved    to    withdraw    his        plea.

Before    the    district    court,   Ewell       argued    only   that      he    was

innocent of some of the charged conduct to which he pled guilty

and was misled into accepting the plea agreement by counsel who

represented      him   at    the    time.         Ewell’s    alleged      mistaken

impression regarding what conduct would ultimately determine his

sentencing guidelines range did not constitute a fair and just

reason for withdrawal of his plea, in light of his assertions at

the plea hearing that he understood his ultimate sentence would

be based in part upon the guidelines calculations and his assent

                                       4
to the truth of the statement of facts attached to the plea

agreement he signed.           Ewell did not present any testimony from

his former counsel, or evidence other than his own testimony, at

the hearing on his motion to withdraw to corroborate his alleged

misunderstanding         or   his    claims        of     ineffective     assistance      of

counsel.     The district court did not abuse its discretion in

finding that Ewell did not credibly assert his innocence and

that his motion to withdraw his plea after a four-month delay

appeared     to     be    based         upon       his     disappointment      with      the

imprisonment range he faced under the guidelines.



                         II. Breach of Plea Agreement

             This court reviews “a claim that a party has breached

a   plea   agreement      under     a    bifurcated         standard,     reviewing      the

district     court’s      factual        findings          for   clear    error,        while

reviewing    the     district       court’s        application     of     principles      of

contract interpretation de novo.”                        United States v. Bowe, 257

F.3d 336, 342 (4th Cir. 2001) (citation omitted).

            The district court did not err in finding that Ewell

repudiated     the       statement        of       facts    attached      to   the      plea

agreement,    and     claimed       he    was       not    actually      guilty    of    the

offenses he pled guilty to, and that these actions constituted a

breach of his plea agreement with the Government.                          As discussed

with respect to Ewell’s motion to withdraw his guilty plea, the

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district court’s finding that his motion to withdraw his guilty

plea     was    not        simply     an    attempt        to    correct        a     previous

misunderstanding caused by counsel is not clearly erroneous.



                                    III. Appeal Waiver

               In    his     plea    agreement,       Ewell      waived       his    right     to

appeal any sentence below the statutory maximum.                                    This court

reviews the validity of a waiver de novo, and will uphold a

waiver of appellate rights if the waiver is valid and the issue

being    appealed      is     covered      by   the   waiver.          United       States     v.

Blick,    408       F.3d    162,    168    (4th     Cir.    2005).          Ewell    does     not

contest the validity of his waiver, beyond his argument that the

district court erroneously denied his motion to withdraw his

guilty plea.          The issues Ewell raises on appeal regarding his

sentence are covered by the waiver because the sentence imposed

was below the statutory maximum.

               For    the     reasons      stated      above,         we    affirm        Ewell’s

conviction and the district court’s finding that he breached his

plea agreement, and dismiss his appeal of his sentence.                                        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;
                                                                           DISMISSED IN PART


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