                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-4644


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

WOSSEN ASSAYE,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:15-cr-00115-LMB-1)


Submitted:   December 28, 2016             Decided:   January 13, 2017


Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Steven P. Hanna, Richmond, Virginia, for Appellant. Dana J.
Boente,   United States Attorney,  Ankush  Khardori, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Wossen Assaye pled guilty pursuant to a plea agreement to

two counts of using, carrying, and brandishing a firearm during

and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A)(ii) (2012).               The district court sentenced

Assaye    to      the   mandatory      minimum         sentence        of        32   years’

imprisonment, and he now appeals.               On appeal, Assaye argues that

the district court erred in denying his motion to withdraw his

guilty plea, and abused its discretion in denying his motion to

appoint new counsel.           The Government has moved to dismiss the

appeal    based    on   an    appellate       waiver    contained           in    the   plea

agreement and further asserts that Assaye’s claims are without

merit.

       The plea agreement contained a waiver of Assaye’s appellate

rights, and we conclude that Assaye knowingly and voluntarily

executed the appellate waiver.            However, we find that the issues

raised on appeal are within the narrow class of alleged errors

that   automatically         fall   outside     the     scope     of    an        appellate

waiver.    See United States v. Copeland, 707 F.3d 522, 530 (4th

Cir. 2013) (listing such errors); United States v. Attar, 38

F.3d 727, 733 n.2 (4th Cir. 1994) (appeal waiver does not bar

review    of   denial    of     motion    to     withdraw       plea        when      motion

“incorporates a colorable claim” of ineffective assistance).



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     Turning to the substance of Assaye’s claims on appeal, we

assume,   without       deciding,      that     his     motion       to     convert    his

sentencing     to   a    status       hearing        served     as    the     functional

equivalent   of     motions      to   withdraw        his     plea   and     to   appoint

replacement counsel.

     When a defendant seeks to withdraw his guilty plea prior to

sentencing, a district court should consider 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 to withdraw the plea; (4) whether
     the defendant had the 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.

United States v. Nicholson, 676 F.3d 376, 384 (4th Cir. 2012).

We review denial of a motion to withdraw a guilty plea for abuse

of discretion.      Id. at 383.

     As to the first factor, the district court’s thorough plea

colloquy and Assaye’s answers to the court’s questions confirm

that he knowingly and voluntarily pled guilty to the charges.

Furthermore,    Assaye     has    offered       no    credible       evidence     of   his

innocence; to the contrary, Assaye twice agreed to facts that

established his factual guilt.                Third, there was a significant

and unexplained delay between the entry of Assaye’s guilty plea

and the filing of any motion to withdraw that plea.


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       The fourth factor is a closer question, but we conclude it

weighs against Assaye.                   Although counsel provided Assaye with

some erroneous advice, it was ultimately irrelevant to the final

plea       agreement,        which     was    the       result    of     several    rounds     of

negotiation.            After extensive negotiations, counsel was able to

secure a substantial reduction in Assaye’s potential sentence.

Even       after   counsel’s         erroneous          advice    came    to     light,   Assaye

stated that he was “fully satisfied” with counsel’s performance

in negotiating the plea agreement.                            The fifth and sixth Moore

factors also weighed in favor of denying Assaye’s motion.                                       We

therefore conclude that the district court did not abuse its

discretion in denying Assaye’s motion. *

       With regard to Assaye’s second claim, when a district court

has    denied           a     request        by     a     defendant       to      replace      his

court-appointed              lawyer,    we    consider         three     factors:       “(1)   the

timeliness         of       the   motion;     (2)       the    adequacy     of    the     court’s

subsequent inquiry; and (3) whether the attorney/client conflict

was so great that it had resulted in total lack of communication

preventing an adequate defense.”                          United States v. Horton, 693

F.3d       463,    467       (4th      Cir.       2012)       (internal    quotation        marks



       *
       Nor does Assaye convince us that the district court abused
its discretion in failing to grant an evidentiary hearing on the
motion. See United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991).



                                                   4
omitted).    We review such a denial for abuse of discretion.              Id.

After   reviewing   the   record     in   light   of   these   factors,     we

conclude that the district court did not abuse its discretion in

denying Assaye’s motion for replacement counsel.

     Finally, although Assaye has filed a motion to submit a

supplemental pro se brief, because counsel filed a merits brief

on Assaye’s behalf, we deny Assaye’s motion.            See United States

v. Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011).

     Consequently, we affirm Assaye’s convictions.                We dispense

with oral argument because the facts and legal contentions are

adequately   presented    in   the   materials    before   this    court   and

argument would not aid the decisional process.

                                                                     AFFIRMED




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