                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4808


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

FRANKIE CORNELL ELLIS, a/k/a Nitty,

                  Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   W. Earl Britt, Senior
District Judge. (4:07-cr-00026-BR-1; 5:07-cr-00060-BR-1)


Submitted:    July 31, 2009                 Decided:   August 14, 2009


Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam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


Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant.    George E. B. Holding,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Frankie Cornell Ellis pled guilty to possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006), and

conspiracy to possess with intent to distribute and distribute

fifty grams or more of cocaine base (crack), 21 U.S.C. § 846

(2006).     He was sentenced as a career offender to a term of

262 months imprisonment for the conspiracy and to the ten-year

statutory       maximum       sentence        for    the     firearm    offense.            Ellis

appeals     his        conviction        and    sentence,          contending        that     the

district court failed to comply with Fed. R. Crim. P. 11 when it

accepted    his        guilty    plea     and       abused    its     discretion      when     it

denied    his     motions       to   withdraw        his     guilty    plea   and     for    new

counsel.         He    also     raises    a     number       of    issues   concerning       his

sentence.       We find that the district court complied with Rule 11

in accepting Ellis’ guilty plea and did not abuse its discretion

when it denied his motions to withdraw his guilty plea and for

substitution of counsel.                  We therefore affirm his conviction.

Because Ellis’ waiver was knowing and voluntary, we dismiss his

appeal of his sentence.

            Ellis’          plea     agreement         provided        that     he     “waived

knowingly and expressly the right to appeal whatever sentence is

imposed     on        any   ground,       including          any    appeal    pursuant        to

18 U.S.C. § 3742[.]”               During the Rule 11 colloquy, the district

court summarized the terms of the plea agreement, including the

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waiver provision, and informed Ellis about the statutory maximum

and minimum sentence he could receive.                    Ellis acknowledged that

he   had    conspired      with       others     to   possess       with    intent         to

distribute and distribute fifty grams or more of crack and that

he   knowingly    possessed       a    firearm    after     being    convicted        of    a

felony.

             Despite the waiver, Ellis challenges his sentence on

multiple grounds.        A defendant may waive the right to appeal if

that waiver is knowing and intelligent.                   United States v. Blick,

408 F.3d 162, 169 (4th Cir. 2005).                    The question of whether a

defendant validly waived his right to appeal is a question of

law that this Court reviews de novo.                  Id. at 168.          The district

court brought the waiver provision to Ellis’ attention during

the guilty plea hearing when he summarized the plea agreement.

Ellis addresses the waiver only in his reply brief, where he

claims     that   his    waiver       was   involuntary      because       he   was    not

satisfied    with    his   counsel’s        representation.           However,        when

Ellis entered his guilty plea, he stated that he was satisfied

with his attorney’s services.               Our review of the record leads us

to   conclude     that   Ellis’       waiver     of   his    right   to     appeal     his

sentence was knowing and voluntary.

             Ellis’ motion to withdraw his guilty plea served to

preserve the issue of the adequacy of the Fed. R. Crim. P. 11

hearing.      United     States       v.    Martinez,       277   F.3d     517,   525-26

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(4th Cir. 2002).     He contends that neither the district court

nor his attorney fully informed him about the possible sentence

he might receive.     The ineffective assistance claim is not one

which may be raised on direct appeal, given that the record does

not conclusively establish that defense counsel was deficient in

this respect.     United States v. Baldovinos, 434 F.3d 233, 239

(4th Cir. 2006).     Further, we conclude that the district court

informed Ellis about the statutory sentence for each count and

fully compiled with Rule 11 in accepting his guilty plea.

           We review the district court’s denial of Ellis’ motion

to withdraw his guilty plea for abuse of discretion.              United

States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007).              Courts

consider   six   factors   in   determining   whether   to   permit   the

withdrawal of a guilty plea:

     (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.

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)

(citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.

1991) (footnote omitted).




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              Ellis contends that his guilty plea was involuntary

because he was unhappy with his attorney’s representation and

pled guilty to the conspiracy count on her advice, even though

he was not guilty of conspiracy.                       However, in light of the

district      court’s      full    compliance      with    Rule        11    in     accepting

Ellis’ guilty plea, Ellis has not “offered credible evidence

that    his    plea     was    not    knowing      or     otherwise          involuntary.”

Ubakanma,      215    F.3d    at     424.        Moreover,    Ellis          informed       the

district court during the plea colloquy that he was satisfied

with his attorney and had not been threatened or coerced to

plead guilty, and his statements at the plea hearing indicated

that he entered the plea knowingly and voluntarily.                               Blackledge

v. Allison, 431 U.S. 63, 74 (1977); Fields v. Attorney Gen., 956

F.2d 1290, 1299 (4th Cir. 1992) (“Absent clear and convincing

evidence      to     the     contrary,      a    defendant        is        bound    by     the

representations he makes under oath during a plea colloquy.”).

              Ellis does not credibly assert his legal innocence.

He states that there was no evidence he conspired with others;

however,      the    presentence      report      contains    information             from   a

confidential         informant     who      observed      Ellis    weighing          half     a

kilogram of crack with two other men.                   The motion was not timely

because it was filed seven months after he entered his guilty

plea.    See Moore, 931 F.2d at 248 (finding that six-week delay

militated against withdrawal of plea).                    Ellis’ assertion that he

                                             5
lacked close assistance of counsel is the only Moore factor that

might weigh in his favor, as it is clear from the record that he

had differences with his attorney.            However, his dissatisfaction

did   not   surface   until   long    after    his    guilty   plea,   when    he

reviewed the presentence report’s recommendation for a career

offender sentence.      Finally, allowing Ellis to withdraw his plea

likely would have prejudiced the government and inconvenienced

the court due to the passage of time.             We are satisfied that the

district court did not abuse its discretion in denying Ellis’

motion to withdraw his guilty plea.           Ubakanma, 215 F.3d at 424.

            Last,     the   court’s    denial      of     Ellis’   motion     for

substitution of counsel is reviewed for abuse of discretion.

United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir.

1994).      In   evaluating    whether     the    trial    court   abused     its

discretion in denying a defendant’s motion for substitution of

counsel, this court must consider:               (1) the timeliness of the

motion; (2) the adequacy of the inquiry; and (3) whether the

attorney/client conflict was so great that it resulted in total

lack of communication preventing an adequate defense.                   United

States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).                        These

factors are weighed against the district court’s “interest in

the orderly administration of justice.”              Id. at 157.

            Ellis’ motion was filed on the day his attorney met

with him to review the presentence report, five days before the

                                       6
scheduled date for sentencing and seven months after his guilty

plea.     Thus, the motion was not timely.              See Reevey, 364 F.3d at

157 (request for continuance to obtain new counsel on first day

of trial is untimely unless exigent circumstances present).

              The district court’s inquiry into the basis for Ellis’

motion was not as thorough as it should have been because the

court   did    not      ask   defense    counsel    whether       she    believed   that

communications with her client had broken down irretrievably or

whether     she      thought     she     could    continue        to    represent       him

adequately.          However,     defense       counsel’s    sentencing         memoranda

indicate that she had been consulting with Ellis.                         Ellis claims

in conclusory fashion that his attorney failed to represent him

adequately during his guilty plea and sentencing, or to advise

him   fully    about      his    legal   rights.      He     also      claims    that    he

differed with more than his lawyer’s strategic choices, but he

does not explain what his differences were.

              Ellis’      attorney       challenged         his     career       offender

designation       and    other    sentencing      enhancements         assiduously,      if

unsuccessfully, and argued for a lower guideline range than was

recommended in the presentence report.                  Although the government

asked for a sentence at the high end of the range, the district

court imposed a sentence at the low end, as defense counsel

requested.      We conclude that Ellis has not demonstrated that his

attorney was unable to represent him adequately at sentencing

                                            7
and that the district court did not abuse its discretion in

denying his motion for new counsel.

           We therefore affirm Ellis’ conviction and the district

court’s denial of his motions to withdraw his guilty plea and

for new counsel.     We dismiss his appeal of his 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 IN PART;
                                                    DISMISSED IN PART




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