                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4544


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

NELSON OMAR MYRIE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:08-cr-00498-HEH-1)


Submitted:    December 22, 2009             Decided:   January 29, 2010


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Timothy V. Anderson, ANDERSON & ASSOCIATES, Virginia Beach,
Virginia, for Appellant.    Angela Mastandrea-Miller, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Nelson       Omar       Myrie    pled       guilty,       pursuant         to    a    plea

agreement, to conspiracy to distribute and possess with intent

to distribute fifty grams or more of cocaine base and possession

with intent to distribute fifty grams or more of cocaine base,

both     in    violation          of    21     U.S.C.         § 841(a)      (2006).            He     was

sentenced       to    126       months’      imprisonment           on    each       count,      to    be

served concurrently.               Myrie’s counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), contending there are

no meritorious issues for appeal, but questioning whether the

district court erred in denying Myrie’s motion to dismiss his

indictment or abused its discretion in denying his motion to

withdraw his guilty plea.                      Myrie was advised of his right to

file   a      pro    se    supplemental            brief      but   did     not      do    so.        The

Government has moved to dismiss, asserting that Myrie’s appeal

is   precluded        by    the    appeal       waiver        contained         in   Myrie’s         plea

agreement.          We affirm in part and dismiss in part.

               Whether a defendant effectively waived his right to

appeal pursuant to a plea bargain is an issue of law that is

reviewed de novo.                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, a waiver will be

enforced       if    the    record        shows         the    waiver      is     valid        and    the

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challenged issue falls within the scope of the waiver.                               Id.    An

appeal waiver is valid if it is “the 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).                              An appeal waiver

does not preclude challenges to a sentence on the ground that it

exceeds the statutory maximum or is based on a constitutionally

impermissible factor like race, or claims concerning a violation

of the Sixth Amendment right to counsel in proceedings following

the   guilty     plea.      Id.         Moreover,          a     defendant’s       waiver    of

appellate       rights   cannot      foreclose         a    colorable          constitutional

challenge to the voluntariness of the guilty plea.                                See United

States v. Attar, 38 F.3d 727, 732-33 n.2 (4th Cir. 1994).



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               Here,    we    find    that    Myrie’s          waiver      of    his    right    to

appeal was knowingly and validly entered, and neither Myrie nor

his counsel contends otherwise.                    The district court engaged the

defendant in a thorough plea colloquy, verifying, inter alia,

that     Myrie       understood      the     proceedings,           was     not        under    the

influence of any drugs, alcohol, or medications, was satisfied

with his attorneys’ performances, and was actually guilty of the

crimes to which he desired to plead guilty.                             The district court

explained       to    Myrie    the    rights       he    was      giving    up    by     pleading

guilty,    specifically         articulating            that      Myrie    was    waiving       his

right to appeal.              Accordingly, as Myrie was fully questioned

during his Rule 11 colloquy regarding his waiver, we find that

the waiver is both valid and enforceable as to all issues within

its    scope.        Additionally,         because       the      first    issue       raised    on

appeal — whether the district court erred in denying Myrie’s

motion    to     dismiss      the    indictment         —    clearly      falls    within       the

scope of Myrie’s appeal waiver, this issue is barred on appeal.

Accordingly, we grant the Government’s motion to dismiss with

regard to this issue.

               In the second issue on appeal, Myrie contends that the

district court abused its discretion in denying his motion to

withdraw       his    guilty    plea,      because          his   attorneys’       ineffective

assistance rendered the guilty plea involuntary.                                 Because this

challenge implicates both the voluntary nature of the guilty

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plea and Myrie’s Sixth Amendment right to counsel, it is not

barred    by   the     plea   agreement.         Therefore,     we     deny   the

Government’s motion to dismiss as to this issue.

           Nevertheless,      we   find   this   challenge    to     be   without

merit.   We review a denial of a motion to withdraw a guilty plea

for an abuse of discretion.         United States v. Ubakanma, 215 F.3d

421, 424 (4th Cir. 2000).            A defendant bears the burden of

demonstrating to the district court’s satisfaction that a “fair

and just reason” supports his request to withdraw.                        Fed. R.

Crim. P. 11(h).        In determining whether the trial court abused

its discretion in denying a motion to withdraw a guilty plea, we

consider six factors:

       (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.

Ubakanma, 215 F.3d at 424 (as articulated in United States v.

Moore, 931 F.2d 245, 248 (4th Cir. 1991)).               Although each Moore

factor must be given appropriate weight, the key in determining

whether a motion to withdraw should be granted is whether the

plea   hearing   was    properly   conducted     under   Rule    11.       United

States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).                         We


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closely       scrutinize          the    Rule      11     colloquy        and       attach    a    strong

presumption that the plea is final and binding if the Rule 11

proceeding is adequate.                  Id.

               As        explained          above,       the      district           court     properly

conducted       a    thorough           plea      colloquy      in    accord         with     Rule      11.

Therefore, we apply a strong presumption that Myrie’s plea was

final and binding.                   Additionally, Myrie has offered no evidence

that his plea was not knowing or voluntary, Myrie enjoyed the

close    assistance             of    two    attorneys         during          all   phases        of   the

proceedings,             and    Myrie       has    not     credibly           asserted       his    legal

innocence,          as    he     admitted         during    his       plea         colloquy    that      he

committed the crimes he was charged with.                                      Therefore, we find

that the district court did not abuse its discretion in denying

Myrie’s motion to withdraw his guilty plea.

               As required by Anders, we have reviewed the entire

record and have found no meritorious issues for appeal.                                                  We

therefore affirm the district court’s judgment to the extent

that    the    court           denied    Myrie’s         motion      to       withdraw     his     guilty

plea.     The remainder of Myrie’s appeal is dismissed.                                      This court

requires       that       counsel       inform      his     client,           in    writing,       of   his

right to petition the Supreme Court of the United States for

further       review.            If    the     client      requests           that    a   petition       be

filed,    but       counsel           believes      that       such       a    petition       would      be

frivolous, then counsel may move in this court for leave to

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withdraw from representation.     Counsel’s motion must state that

a copy thereof was served on the client.     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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