                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                       FILED
                           ________________________          U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                 No. 07-14626                       June 13, 2008
                             Non-Argument Calendar              THOMAS K. KAHN
                           ________________________                   CLERK


                   D. C. Docket No. 06-00049-CR-OC-10-GRJ

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

BRIAN DANDRIDGE,

                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (June 13, 2008)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Brian Dandridge (“Dandridge”) appeals his conviction and 60-month

sentence for conspiracy to distribute and to possess with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 846. On appeal, Dandridge

argues that the district court erred in regard to three issues. First, Dandridge

argues that the district court erred at sentencing by denying his request for a

minimal role reduction, failing to rectify a sentencing disparity among

codefendants, and failing to consider fully the 18 U.S.C. § 3553(a) factors.

Second, Dandridge contends that the district court abused its discretion by denying

his motion to withdraw his guilty plea. Finally, Dandridge argues that the district

court erred by denying his motion to compel the government to file a U.S.

Sentencing Guidelines Manual § 5K1.1 substantial assistance motion for sentence

reduction. For the foregoing reasons, we affirm the judgment of the district court.

I. FACTS

      Brian Dandridge was indicted in August 2006 for his role in facilitating a

drug sale between his brother, Gerald Dandridge (“Gerald”), and an acquaintance,

Noah Shackelford (“Shackleford”). The Drug Enforcement Administration

(“DEA”) had tapped Gerald’s phone, which allowed DEA agents to know the time

and place where the sale would be completed. Gerald and Shackleford were

arrested after the deal was completed; Dandridge was not present at the sale and

was arrested later for his participation as broker.

      Dandridge was in a position to provide the government with information

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regarding other drug trafficking in the area. The government negotiated a plea

agreement with Dandridge, under the terms of which the government would

consider filing a § 5K1.1 motion for a sentence reduction. Dandridge accepted the

plea agreement. He was facing a five-year mandatory minimum sentence, which

could be reduced by the government’s § 5K1.1 motion. However, the government

ultimately chose not to file a § 5K1.1 motion. Dandridge filed motions to

withdraw his guilty plea and compel the government to file a § 5K1.1 motion, both

of which the district court denied. Dandridge now appeals.

                                       II. DISCUSSION

      A.        Appeal Waiver and Sentence

      Dandridge’s plea agreement includes a waiver of his right to appeal his

sentence.1 The government argues that Dandridge’s appeal should be dismissed

because he waived his right to appeal. We review de novo the validity of a

sentence appeal waiver. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir.

1993). We will enforce an appeal waiver contained in a plea agreement where the

government demonstrates either that: “(1) the district court specifically questioned

the defendant about the waiver during the plea colloquy, or (2) the record clearly

shows that the defendant otherwise understood the full significance of the waiver.”

      1
          The appeal waiver includes four exceptions that are not relevant here.

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United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).

      An enforceable sentence appeal waiver encompasses an appeal of the

government’s refusal to file a § 5K1.1 motion for sentence reduction. See id. at

1446-47. However, this Court has considered on appeal a defendant’s claim that

the government breached the plea agreement, even though the agreement

contained a sentence appeal waiver. See United States v. Copeland, 381 F.3d

1101, 1104-05 (11th Cir. 2004).

      In this case, the district court specifically questioned Dandridge about the

appeal waiver during the plea colloquy. Dandridge stated that he understood the

appeal waiver and its implications. Therefore, the appeal waiver is enforceable.

As a result, Dandridge cannot challenge his sentence on appeal. Accordingly, we

reject his argument that the district erred at sentencing by denying his request for a

minimal role reduction, refusing to adjust his sentence downward in light of the

disparity between his sentence and his codefendants’ sentences, and declining to

consider the § 3553(a) factors.

      Dandridge also challenges the district court’s denial of his motion to

withdraw his guilty plea and motion to compel the government to file a § 5K1.1

motion. The government contends that both of these claims fall within the appeal

waiver and therefore should not be considered on appeal. We need not decide if

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the appeal waiver extends to these claims because, as the discussion below makes

clear, Dandridge cannot prevail on the merits of either claim.

      B.     Motion to Withdraw Guilty Plea

      Dandridge argues that the district court erred in denying his motion to

withdraw his guilty plea because Dandridge asserted a “fair and just reason” for

requesting the withdrawal. Dandridge’s reason was the government’s failure to

file a § 5K1.1 motion to reduce his sentence for providing substantial assistance to

the government. Dandridge asserts that he only agreed to the plea arrangement

because the government represented that his cooperation in regard to another

investigation would lead to a § 5K1.1 reduction in his sentence.

      We review a district court’s decision to deny a motion to withdraw a guilty

plea for an abuse of discretion. United States v. Freixas, 332 F.3d 1314, 1316

(11th Cir. 2006). “The district court may be reversed only if its decision is

arbitrary or unreasonable.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir.

1988). After the district court has accepted a guilty plea but before sentencing, the

defendant may withdraw the plea if he or she shows “a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The “fair and just

reason” standard should be liberally construed, but there is no absolute right to

withdraw a guilty plea before sentencing. Buckles, 843 F.2d at 471. To

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determine whether a defendant has shown a “fair and just reason,” a district court

may consider the totality of the circumstances surrounding the plea, including the

following factors: “(1) whether close assistance of counsel was available; (2)

whether the plea was knowing and voluntary; (3) whether judicial resources would

be conserved; and (4) whether the government would be prejudiced if the

defendant were allowed to withdraw his plea.” Id. at 471-72.

      Dandridge had the assistance of counsel throughout the plea negotiations

and court proceedings. He represented to the district court that he understood his

plea, that it was voluntary, and that he had not been promised anything in addition

to what was in the plea agreement. Proceeding with a trial in this case would not

conserve judicial resources and is likely to prejudice the government. Therefore,

we cannot find that the district court abused its discretion in denying Dandridge’s

motion to withdraw his guilty plea.

      C.    Motion to Compel the Government to File a § 5K1.1 Motion

      Dandridge argues that the district court should have reviewed for bad faith

the government’s decision not to file a § 5K1.1 motion, as he cooperated with the

government and the government had no rational basis for its decision. However,

Dandridge’s plea agreement gave the government complete discretion in deciding

whether to file a § 5K1.1 motion. Dandridge told the court that he understood this

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provision of his plea agreement at the plea colloquy. In addition, “[f]ederal

district courts have authority to review a prosecutor’s refusal to file a

substantial-assistance motion and to grant a remedy if they find that the refusal

was based on an unconstitutional motive.” Wade v. United States, 504 U.S. 181,

184-85, 112 S. Ct. 1840, 1843-44 (1992). Dandridge does not allege that the

government’s refusal to file a § 5K1.1 motion on his behalf was based on an

unconstitutional motive. Therefore, the district court did not err in denying

Dandridge’s motion to compel. Accordingly, the judgment of the district court is

      AFFIRMED.




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