                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4031


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JERMAINE BELL,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:06-cr-00179-RDB-2)


Submitted:    December 16, 2009             Decided:   January 4, 2010


Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney, Tonya Kelly Kowitz, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jermaine Bell appeals his conviction for possession of

a firearm in furtherance of a drug trafficking crime resulting

in death, in violation of 18 U.S.C. § 924(j) (2006).                         Bell pled

guilty, pursuant to a plea agreement, and was sentenced to 360

months’ imprisonment.         On appeal, Bell contends that his denial

at sentencing of any connection to drug trafficking called into

question whether there existed a factual basis for his guilty

plea.      Bell contends that this denial invoked a duty of the

district    court   to    satisfy    itself      that      there    still    existed   a

factual basis to enter a guilty plea.                   The Government has filed

a motion to dismiss, asserting that, as Bell’s guilty plea was

knowingly and voluntarily entered, Bell’s appeal is barred by

the waiver contained in his plea agreement.                         Although we deny

the     Government’s     motion,     we       affirm       Bell’s    conviction     and

sentence.

            We   review      de   novo    whether      a    defendant       effectively

waived his right to appeal pursuant to a plea agreement.                         United

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

government seeks to enforce an appeal waiver and the appellant

does not contend that the government is in breach of its plea

agreement, we will enforce the waiver if the record shows the

waiver is valid and the challenged issue falls within the scope

of the waiver.         Id.    An appeal waiver is valid if it is “the

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result of a knowing and intelligent decision to forgo the right

to appeal.”       United States v. Broughton-Jones, 71 F.3d 1143,

1146 (4th Cir. 1995) (internal quotation marks and citations

omitted).      To decide whether a defendant’s waiver results from a

knowing and intelligent decision, we examine “‘the particular

facts   and    circumstances   surrounding   that   case,   including   the

background, experience and conduct of the accused.’”               United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992) (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).          Generally, if the

district court fully questions a defendant at his Fed. R. Crim.

P. 11 proceeding regarding the waiver of his right to appeal,

the waiver is both valid and enforceable.           See United States v.

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

              Here, there is no question that Bell’s waiver was the

result of a “knowing and intelligent decision to forgo the right

of appeal,” Broughton-Jones, 71 F.3d at 1146, and Bell does not

contend otherwise.      Prior to accepting Bell’s guilty plea, the

district court engaged in a lengthy plea colloquy with Bell in

accordance with Fed. R. Crim. P. 11.          In particular, the judge

verified that Bell had not been treated for mental illness or

drug addiction, was not currently under the influence of drugs

or alcohol, and was satisfied with his attorneys’ performance.

Additionally, the district court verified that Bell was aware

that he had waived his right to appeal any sentence within the

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range     stipulated     within        the   plea     agreement.            The     Government

summarized       the    factual     basis      for        the    guilty     plea        and    Bell

affirmed both that he had committed the crime as summarized by

the Government and still wished to plead guilty.                              Therefore, as

it   is    apparent      that     Bell’s           plea    was      both     knowingly          and

voluntarily entered, Bell’s waiver will bar the appeal of issues

within its scope.

                However, Bell contends that, as his appeal challenges

whether there was a factual basis for his plea agreement, his

appeal     is    not    barred    by     the       waiver       contained     in        his   plea

agreement, as “[e]ven valid waivers do not bar a claim that the

factual         basis    is      insufficient             to      support         the     plea.”

(Appellant’s Br. at 6); United States v. Hildenbrand, 527 F.3d

466, 474 (5th Cir. 2008); United States v. Mitchell, 104 F.3d

649, 652 n.2 (4th Cir. 1997) (“[I]t is well settled that a

defendant may raise on direct appeal the failure of a district

court to develop on the record a factual basis for the plea.”).

Thus, Bell asserts, because his appeal goes to the propriety of

the guilty plea itself, his appeal is not barred by waiver.

                Conversely,      the     Government             argues     that    the        judge

satisfied the requirements of Rule 11 during the plea colloquy,

where he determined that a factual basis existed for the guilty

plea.        Therefore,       the       Government          contends,        Bell        is    not

challenging        whether    a     factual         basis        exists     for     his       plea

                                               4
agreement, but instead whether Bell’s “own self-serving denial

that he ever sold drugs, made months after the conclusion of the

Rule 11 colloquy, somehow fairly impugns the validity of the

Rule 11 hearing to allow this direct appeal.”                       However, the

Government’s      argument      essentially    admits    that      Bell’s    appeal

challenges the validity of Bell’s guilty plea, an attack that

would not be barred by Bell’s appeal waiver.                      Accordingly, we

deny the Government’s motion to dismiss Bell’s appeal.

            However, because Bell has submitted his formal brief

on appeal, and the contentions contained therein are without

merit, we find it appropriate to dispose of his appeal on the

merits.    As Bell did not move in the district court to withdraw

his guilty plea, any error in the Rule 11 hearing is reviewed

for plain error.         United States v. Martinez, 277 F.3d 517, 524,

527 (4th Cir. 2002).         To establish plain error, Bell must “show

that an error occurred, that the error was plain, and that the

error affected his substantial rights.”                 See United States v.

White,    405    F.3d    208,    215   (4th   Cir.   2005).         In   order   to

demonstrate that his substantial rights were affected, Bell must

“show a reasonable probability that, but for the error, he would

not have entered the plea.”             United States v. Massenburg, 564

F.3d 337, 344 (4th Cir. 2009).

           Though Bell contends that his statements made during

sentencing      raised   a   question    as   to   whether    a    factual   basis

                                         5
existed for his plea, the record indicates that, during the plea

colloquy, the Government reiterated the factual basis for the

plea, and Bell affirmed both that the Government’s summary was

accurate and that a factual basis existed for the entry of a

guilty plea.           Additionally, Bell signed the attachment to the

plea agreement, stipulating to the facts underlying the guilty

plea.      Based       on   these   sworn    admissions,       the   district    court

determined that a factual basis existed for the plea agreement.

               In the absence of clear and convincing evidence to the

contrary, a defendant is bound by statements made under oath

during his plea colloquy.              See Blackledge v. Allison, 431 U.S.

63, 73-74 (1977); United States v. Lemaster, 403 F.3d 216, 221

(4th Cir. 2005) (courts can rely on statements made in open

court     at    subsequent       collateral        proceedings).       Though     Bell

asserts that the district court erred in failing to engage in an

additional colloquy with Bell during his sentencing, any such

error     did    not    affect      Bell’s       substantial    rights.     It    was

abundantly clear from Bell’s prior sworn attestations that a

factual basis existed for the guilty plea, and Bell fails to

controvert this conclusion.                 See Massenburg, 564 F.3d at 344

(“[T]he        mere    existence      of     an    error   cannot      satisfy     the

requirement that [a defendant] show his substantial rights were

affected.”).



                                             6
          Accordingly,   we   deny    the   Government’s   motion   to

dismiss, deny Bell’s motion to file a pro se supplemental brief,

and affirm the district court’s judgment.      We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument will

not aid the decisional process.

                                                             AFFIRMED




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