                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4594



UNITED STATES OF AMERICA,

                                            Plaintiff -   Appellee,

          versus


JOSE FUENTES-GONZALES, a/k/a Pepe, a/k/a Pepe
Fuentes, a/k/a Jose Fuentes,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-01-221; CR-02-7)


Submitted:   July 27, 2005            Decided:   September 28, 2005


Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Jose Fuentes-Gonzales appeals his convictions and 188

month   sentence   for   illegal    reentry   as   an   alien   following

deportation, in violation of 8 U.S.C. § 1326 (2000), and conspiracy

to possess with intent to distribute methamphetamine, in violation

of 21 U.S.C. §§ 841, 846 (2000).       Finding no error, we affirm in

part and dismiss in part.

           Fuentes-Gonzales first claims that the district court

abused its discretion in denying his motion to withdraw his guilty

plea.   A district court’s denial of a motion to withdraw a guilty

plea is reviewed for an abuse of discretion.       See 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.       United States v.

Moore, 931 F.2d 245, 248 (4th Cir. 1991).          Rather, a defendant

bears the burden of demonstrating that a “fair and just reason”

supports his request to withdraw his plea. Id. Factors considered

in determining whether a defendant has shown a fair and just reason

for withdrawing his guilty plea include: (1) whether the defendant

has offered credible evidence that the plea was not knowing or

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 the

defendant had close assistance of competent counsel; (5) whether

withdrawal will cause prejudice to the government; and (6) whether


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permitting    withdrawal     will   inconvenience     the   court   and    waste

judicial resources.        Id.   Reviewing these factors as they apply to

Fuentes-Gonzales’ guilty plea, we cannot conclude that the district

court abused its discretion in denying the motion to withdraw the

plea.   Accordingly, we affirm the district court’s decision as to

this claim.

            Fuentes-Gonzales also claims that the district court

violated his Sixth Amendment right to trial by jury when it

sentenced him in accordance with the federal sentencing guidelines.

Criminal defendants may waive their statutory right to direct

appeal as part of a plea agreement with the government.                   United

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).             For a waiver

to be effective, the plea agreement must be entered into knowingly

and voluntarily, and the district court must specifically inquire

as to the defendant’s knowledge of the waiver provision.                     Id.

Where   a   waiver    of   appellate   rights   has    been   knowingly      and

voluntarily agreed to, both parties are entitled to the benefits of

their bargain.       See United States v. Ringling, 988 F.2d 504, 506

(4th Cir. 1993).       Moreover, a waiver is not rendered unknowing,

involuntary, or unenforceable based on the subsequent opinion of

the United States Supreme Court in United States v. Booker, 125 S.

Ct. 738 (2005).       See United States v. Johnson, 410 F.3d 137 (4th

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




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          Our review of the plea agreement, and the transcript of

Fuentes-Gonzales’   plea   colloquy,    discloses   he   was   adequately

informed of the nature and scope of his appellate waiver.         We also

conclude that any claim regarding Fuentes-Gonzales’ sentencing

under the mandatory sentencing guidelines scheme falls squarely

within the appellate waiver. Accordingly, we dismiss the appeal as

to this claim.

          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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