                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 02-1669
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

DARRELL JONES,
                                       Defendant-Appellant.

                       ____________
           Appeal from the United States District Court
               for the Southern District of Illinois.
       No. 01 CR 30154—G. Patrick Murphy, Chief Judge.
                       ____________
     ARGUED MAY 27, 2004—DECIDED AUGUST 20, 2004
                     ____________



  Before FLAUM, Chief Judge, and MANION and KANNE,
Circuit Judges.
  KANNE, Circuit Judge. On October 19, 2001, a federal
grand jury returned a four-count indictment charging
Darrell Jones with three counts of distributing over five
grams of crack cocaine and one count of possessing with the
intent to distribute more than five grams of crack cocaine
and cocaine powder. See 21 U.S.C. § 841. On December 12,
Jones pled guilty to all four counts of the indictment,
pursuant to a written plea agreement in which he waived
his right to appeal his sentence. The next day, Jones at-
tempted to withdraw his guilty plea. The district court, on
2                                                 No. 02-1669

December 17, denied Jones’s motion without holding an evi-
dentiary hearing. The district court proceeded to sentence
Jones to 360 months in prison under the United States
Sentencing Guidelines. We affirm the district court’s deci-
sion to deny Jones’s motion to withdraw his guilty plea
without an evidentiary hearing, and we decline to review
Jones’s sentence as his plea bargain included a valid waiver
of his right to appeal.


                         I. History
  After the authorities completed a series of audiotaped
drug transactions with Jones through cooperating individu-
als, he was arrested on July 13, 2001.1 Jones waived his
Miranda rights and provided a written statement outlin-
ing his lengthy involvement in cocaine sales. Jones even
turned over to police quantities of crack cocaine, powder co-
caine, and two firearms he kept in his East St. Louis, Illinois,
residence.2 Jones initially pled not guilty, but given the
strong evidence against him, he entered into a plea agree-
ment with the government.
  Jones agreed to plead guilty to all four counts in the in-
dictment. The plea agreement set out the government’s
belief that Jones’s sentencing range would be 262-327
months and Jones’s belief that his sentencing range would
be 210-262 months. Jones acknowledged that neither of
these numbers were binding on the court should it accept
the guilty plea and plea agreement. Jones agreed “that the
total amount of cocaine base, commonly known as ‘crack’
cocaine attributable to the defendant, to be used in cal-


1
 The amounts of crack cocaine involved in the three transactions
were, respectively, 13.0 grams, 13.1 grams, and 12.7 grams.
2
   On July 13, 2001, 24.8 grams of crack cocaine and 26.9 grams
of powder cocaine were seized.
No. 02-1669                                                        3

culating his relevant offense conduct, would be more than
one point five kilograms[.]” (Plea Agreement at 5.)
 Jones also waived his right to appeal in the plea agree-
ment:
    The defendant is aware that Title 18, United States
    Code, Section 3742 affords a defendant the right to ap-
    peal the sentence imposed. Acknowledging all this, the
    Defendant knowingly waives the right to appeal any
    sentence within the maximum provided in the statute(s)
    of conviction (or the manner in which that sentence was
    determined) on the grounds set forth in Title 18, United
    States Code, Section 3742 or on any ground whatever,
    in exchange for the concessions made by the United
    States in this plea agreement.3 The Defendant also
    waives his right to challenge his sentence or the man-
    ner in which it was determined in any collateral at-
    tack[.]
(Plea Agreement at 7.) After Jones signed the plea agree-
ment, he changed his plea to guilty on December 12, 2001.
   As Jones concedes in his appellate brief, “the district
court properly admonished [him] pursuant to Rule 11 and
found that the plea was knowing and voluntary.” (Def. Br.
at 5.) The district judge, in a twenty-seven minute hearing,
assured himself that Jones was competent to plead guilty
and that he willingly signed the plea agreement, without
pressure or promises from anyone. The district judge care-
fully questioned Jones to make sure he understood the ram-
ifications of his guilty plea, which the judge accepted after
the Rule 11 colloquy. The judge also discussed the plea
agreement, which he postponed acceptance of until after the



3
   The concessions included an agreement not to file drug-traf-
ficking, weapons, or other charges arising from the events leading up
to Jones’s arrest.
4                                                No. 02-1669

pre-sentence report (“PSR”) was available. Judge Murphy
thoroughly explained the right of trial by jury, including the
concomitant right to be presumed innocent until proven
guilty beyond a reasonable doubt, the right to produce
witnesses in one’s defense, the right to cross-examine
adverse witnesses, and the right to either testify or not to
testify in one’s own defense.
   The district judge went on to ensure that Jones under-
stood that the statutory range of imprisonment for each
count he had pled guilty to was ten years to life, and that
once the judge accepted the guilty plea, the sentencing guide-
lines’ estimates in the plea agreement would not be binding
on the court. The district judge also reiterated to Jones that
he was abandoning his right to appeal: “And you under-
stand that the government is . . . making certain conces-
sions to you and for your part, you’re giving up your right
to appeal your sentence. Do you understand that?” Jones
replied, “Yes, sir.” (Plea Tr. at 15.) Throughout the change of
plea hearing, the judge allowed Jones to consult with his
attorney.
  Despite this thorough Rule 11 colloquy, Jones insisted the
next day that he wanted to withdraw his guilty plea and
sever his relationship with his attorney. Jones claimed that
he did not understand the plea bargain and that he thought
he was pleading guilty in exchange for a sentence of ten
years. The district judge denied his requests on December
17, 2001, refusing to reexamine the issues through an eviden-
tiary hearing:
    While a transcript of the December 12 hearing has not
    been prepared, the Court keenly recalls the proceedings
    and is satisfied that the requirements of Federal Rule
    of Criminal Procedure 11 were met. Defendant took an
    oath to tell the truth, admitted that he understood the
    charges against him and the possible penalties associ-
    ated with a plea of guilty to those charges, and told this
No. 02-1669                                                  5

    Court that it was his desire to plead guilty. As stated by
    Judge Easterbrook, “[a] defendant’s protestation that
    statements freely made under oath when entering the
    plea were a pack of lies is not a ‘fair and just reason’ to
    start anew.” United States v. Stewart, 198 F.3d 984, 987
    (7th Cir. 1999).
(Mem. and Order at 2.)
  After reviewing the PSR and considering Jones’s objec-
tions to that document, the district judge sentenced Jones
on March 11, 2002. The judge agreed with the PSR that a
sentencing range of 360 months to life was appropriate and
sentenced Jones to 360 months imprisonment on all four
counts, to run concurrently. Jones also received eight years
supervised release, was fined $4000, and was ordered to pay
a special assessment of $400.
  Jones filed a timely Notice of Appeal on the same day he
was sentenced. He asserts that the district court should
have allowed him to withdraw his guilty plea, or, alternately,
should have held an evidentiary hearing to see if he had
valid reasons to withdraw his plea. Jones also requests this
court to review his sentence, in spite of his clear waiver of
appeal.


                        II. Analysis
  A district court’s decision to deny a motion to withdraw a
guilty plea is reviewed for abuse of discretion. United States
v. Shaker, 279 F.3d 494, 497 (7th Cir. 2002); United States
v. Standiford, 148 F.3d 864, 868 (7th Cir. 1998). Under the
former Federal Rule of Criminal Procedure 32(e) (2001), “[i]f
a motion to withdraw a plea of guilty . . . is made before
sentence is imposed, the court may permit the plea to be
withdrawn if the defendant shows any fair and just
6                                                     No. 02-1669

reason.”4 If the district court had not yet accepted Jones’s
guilty plea, he could have freely withdrawn his plea without
explanation. See Shaker, 279 F.3d at 495-97. But because
the district court had accepted Jones’s guilty plea, Jones
needed to provide a fair and just reason under Rule 32(e) to
withdraw his plea (even though the district court had not
yet accepted the plea agreement). United States v. Hyde,
520 U.S. 670, 671-74 (1997).
  We review the district court’s refusal to allow an eviden-
tiary hearing to explore whether Jones should be allowed to
withdraw his guilty plea for an abuse of discretion. See
United States v. Winston, 34 F.3d 574, 578-79 (7th Cir.
1994). “A hearing on a motion to withdraw a plea is to be
routinely granted if the movant offers any substantial evi-
dence that impugns the validity of the plea.” United States v.
Redig, 27 F.3d 277, 280 (7th Cir. 1994) (quotations omitted).
However, “if no such evidence is offered, or if the allegations
advanced in support of the motion are mere conclusions or are
inherently unreliable, the motion may be denied without a
hearing.” Id. (quotation omitted). Furthermore, the defen-
dant “must overcome the presumption of verity that
attaches to [statements made at the Rule 11 colloquy].” Id.
(quotation omitted).
  Jones concedes that the Rule 11 colloquy was thorough
and fair. He asserts, however, that he didn’t really under-
stand the plea bargain and the guilty plea. Furthermore,
according to Jones, he was duped by his attorney into
believing that he was making a deal for ten years in prison.


4
  In 2002, the Federal Rules of Criminal Procedure were amended,
with Rule 11(d) replacing Rule 32(e). Rule 11(d) now specifically
provides that a defendant may withdraw his guilty plea for “any
reason or no reason” before the district court accepts the guilty
plea. Fed. R. Crim. P. 11(d)(1). After the district court accepts the
guilty plea, however, the defendant must show a “fair and just
reason” for withdrawing the plea. Fed. R. Crim. P. 11(d)(2)(B).
No. 02-1669                                                       7

These assertions alone do not entitle Jones to withdraw his
plea or even entitle him to an evidentiary hearing.
  At his Rule 11 hearing, Jones explicitly affirmed that he
understood how the judge would assess the information
provided in the PSR to calculate a sentence. He confirmed
that he had discussed this matter with his attorney. He also
unequivocally denied that anyone—not his own lawyer, not
the government attorneys—had attempted to force him to
plead guilty. Jones’s motion to withdraw his guilty plea
directly contradicts his statements at the change of plea
hearing. Other than his own self-serving assertions, his
motion lacks any proof that he did not understand his guilty
plea or that he was pressured into a guilty plea through
false promises. See Winston, 34 F.3d at 578-79 (explaining
that affidavits containing only conclusions do not provide a
basis for an evidentiary hearing). The district judge was
well within his discretion in crediting Jones’s Rule 11
testimony as conclusive. See United States v. Stewart, 198
F.3d 984, 987 (7th Cir. 1999) (“[A] defendant has no chance
of success on appeal when the judge elects to treat freely
given sworn statements as conclusive.”).
  Furthermore, Jones’s waiver precludes this court from
considering his challenge to his sentence.5 A defendant may
waive his appeal rights as part of a plea agreement,
provided the waiver is clear and unambiguous. United
States v. Mason, 343 F.3d 893, 893-94 (7th Cir. 2003); United
States v. Nave, 302 F.3d 719, 720 (7th Cir. 2002); United


5
   Although the parties did not discuss the appeal waiver in their
briefs, it had already been raised in the government’s March 27,
2002 motion to dismiss Jones’s appeal filed in this court. In an
Order issued on April 17, 2002, we denied the government’s motion.
But by doing so, we were only agreeing with Jones that the issue
of waiver “should be taken with the case . . . [and] ruled on at the
conclusion of these proceedings.” (Def. Response, April 1, 2002, at
1.)
8                                              No. 02-1669

States v. Woolley, 123 F.3d 627, 631-32 (7th Cir. 1997).
“[T]he right to appeal is a statutory right, and like other
rights—even constitutional rights—which a defendant may
waive, it can be waived in a plea agreement.” United States
v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997). Volun-
tariness of a guilty plea is ensured by a court’s compliance
with Federal Rule of Criminal Procedure 11. United States
v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002).
  Jones explicitly waived his right to appeal his sentence.
And, as established above, he knowingly and voluntarily
signed the plea agreement and pled guilty. The fact that he
is unhappy with his ultimate sentence does not undo his
acquiescence.


                    III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
refusal to allow Jones to withdraw his guilty plea. We
DISMISS his sentence appeal pursuant to the waiver in the
plea agreement.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-20-04
