                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4299



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ALFREDO Z. APARICIO,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-03-420)


Submitted:   July 13, 2005             Decided:   September 13, 2005


Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert L. Jenkins, Jr., Marcia O. Wright, BYNUM & JENKINS,
P.L.L.C., Alexandria, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, John T. Morton, Assistant United States
Attorney, Beth N. Gibson, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Alfredo Z. Aparicio appeals his conviction and sentence

for conspiracy to commit identification document fraud in violation

of 18 U.S.C. § 1028(f) (2000).    Finding no error, we affirm.

          Aparicio first claims the district court erred by denying

his motion to withdraw his guilty plea.   “[T]he district court has

discretion to decide whether a ‘fair and just reason’ exists upon

which to grant a withdrawal.”     United States v. Bowman, 348 F.3d

408, 413 (4th Cir. 2003).   The district court’s denial of a motion

to withdraw a guilty plea is reviewed for abuse of discretion.

United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).

          In determining whether a defendant has shown a “fair and

just reason” to withdraw his guilty plea, a court examines the

following 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, (4)
     whether defendant has had 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. Moore, 931 F.2d 245, 248 (4th Cir. 1991).       The

most important consideration in resolving a motion to withdraw a

plea, however, is whether the Rule 11 plea colloquy was properly

conducted.    Bowman, 348 F.3d at 414.    We closely scrutinize the

Rule 11 hearing and attach a strong presumption that the plea is


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final and binding if the Rule 11 proceeding is adequate.                    United

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).

             Aparicio contends that he did not plead guilty knowingly

or voluntarily because he lacked faith in his counsel’s preparation

to go to trial.         The district court conducted a thorough Rule 11

plea colloquy in which Aparicio said he was fully satisfied with

the advice and counsel of his attorney.              The district court fully

informed him of his rights and Aparicio said he understood that he

plead guilty knowingly and voluntarily.

             Aparicio also argues that the district court erred when

it ruled he did not make a credible assertion of innocence.                 During

the   plea   hearing,     Aparicio    admitted      to   participating   in    the

conspiracy, gave a detailed description of his role and the people

he helped get licenses, and admitted that he knew the people he was

helping   were    not    eligible    for   licenses.       The   district    court

properly conducted its Rule 11 colloquy and Aparicio failed to

submit    any    evidence    to   counter     the   strong   presumption      that

Aparicio’s plea was final and binding.              The district court did not

abuse its discretion in denying Aparicio’s motion to withdraw the

guilty plea.

             Aparicio     next    claims   the   district    court   improperly

sentenced him when it enhanced his sentence under U.S. Sentencing

Guidelines Manual § 5K2.7 (2004).           The district court enhanced his

sentence one offense level by finding that his actions caused


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significant disruption of the Department of Motor Vehicle’s (DMV)

function.    Without the enhancement, his sentencing guideline range

would have been forty-one to fifty-one months imprisonment.    Thus,

the sentence Aparicio received, a prison term of forty-six months,

did not exceed the sentence authorized by his guilty plea, even if

the judicial enhancement is disregarded.      Accordingly, Aparicio

cannot demonstrate a Sixth Amendment error because he failed to

establish that the district court imposed a sentence that exceeded

the maximum authorized by the facts that he admitted.         United

States v. Evans, 416 F.3d 298 (4th Cir. 2005).

            To the extent Aparicio also claims the district court

erred by sentencing him under the mandatory guidelines, because

Aparicio did not object to the application of the sentencing

guidelines as mandatory, appellate review is for plain error.

United States v. White, 405 F.3d 208, 215 (4th Cir. 2005).        To

demonstrate plain error, a defendant must establish that error

occurred, that it was plain, and that it affected his substantial

rights.     Id. (citing United States v. Olano, 507 U.S. 725, 732

(1993)).

            In White, this court determined that imposing a sentence

under the guidelines as mandatory was error that was plain. White,

405 F.3d at 217.     In determining whether an error affected the

defendant’s substantial rights, we reasoned that “the error of

sentencing a defendant under a mandatory guidelines regime” was not


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an error for which prejudice would be presumed.          Id. at 221.

Rather, the defendant bears the burden of showing that this error

“affected the outcome of the district court proceedings.”      Id. at

223.   Aparicio failed to meet this burden because he presented no

non-speculative evidence or argument demonstrating that he would

have received a lower sentence had the district court appreciated

that the guidelines were not mandatory.     Accordingly, the district

court’s error of sentencing Aparicio under a mandatory guidelines

scheme did not affect Aparicio’s substantive rights.

            Accordingly,   we   affirm   Aparicio’s   conviction   and

sentence.    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




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