                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4320


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN ALEXANDER SCOTT,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:09-cr-00581-JFM-1)


Submitted:   November 20, 2012            Decided:   November 30, 2012


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Raymond J. Rigat, Washington, DC, for Appellant.           Rod J.
Rosenstein, United States Attorney, Michael C. Hanlon, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kevin Alexander Scott appeals his conviction following

a guilty plea to Hobbs Act robbery, in violation of 18 U.S.C.

§ 1951 (2006), and use of a firearm during a crime of violence,

in violation of 18 U.S.C. § 924(c) (2006).                      On appeal, Scott

argues that the district court abused its discretion in denying

his motion to withdraw his guilty plea.               We affirm.

            In his plea agreement, Scott agreed to waive the right

to appeal his conviction and “whatever sentence is imposed,”

reserving    the   right    to    appeal      a   sentence     in    excess   of   300

months’     imprisonment.         A     defendant    may,      in    a   valid     plea

agreement, waive the right to appeal under 18 U.S.C. § 3742

(2006).     United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.

1990).    An appellate waiver must be “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 citation omitted).                         However, an

appellate    waiver   in   a     plea   agreement     will     not   bar   appellate

review of a district court’s denial of a motion to withdraw the

underlying guilty plea when the motion contains a “colorable

claim” that the plea agreement “is tainted by constitutional

error,” such as involuntariness or the lack of the effective

assistance of counsel.           United States v. Attar, 38 F.3d 727, 733

n.2 (4th Cir. 1994).        In his motion to withdraw his guilty plea,

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Scott argued that his plea was not knowing and voluntary because

his trial counsel withheld germane information from him during

the    plea    process.         As   Scott’s      motion      presents      a    “colorable”

claim    that    his     plea    agreement        was    tainted      by    constitutional

error, the waiver provision does not preclude an appeal of the

denial of his motion to withdraw his guilty plea.

               We review the district court’s denial of a defendant’s

motion to withdraw his guilty plea for an abuse of discretion.

United States v. Battle, 499 F.3d 315, 319-20 (4th Cir. 2007).

“[A] defendant does not have an absolute right to withdraw a

guilty plea, even before sentencing.”                         United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991).                       To withdraw a guilty plea

after entry of the plea but before sentencing, a defendant bears

the     burden      of   showing      a     “fair       and    just    reason       for   the

withdrawal.”         Fed. R. Crim. P. 11(d)(2)(B); Moore, 931 F.2d at

248.     “[A] ‘fair and just reason’ for withdrawing a plea is one

that essentially challenges . . . the fairness of the Rule 11

proceeding.”        United States v. Lambey, 974 F.2d 1389, 1394 (4th

Cir. 1992) (en banc).

               In determining whether a defendant has established a

“fair    and     just    reason”      for    withdrawal,           courts    consider     six

factors.       Moore, 931 F.2d at 248.              The first, second, and fourth

factors       are    the    most      significant,            as    they        “speak    most

straightforwardly to the question whether the movant has a fair

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and    just    reason       to    upset        settled    systemic        expectations          by

withdrawing [his guilty] plea.”                        United States v. Sparks, 67

F.3d 1145,         1154    (4th    Cir.     1995).        Further,        an    appropriately

conducted Rule 11 proceeding “raise[s] a strong presumption that

the plea is final and binding.”                  Lambey, 974 F.2d at 1394.

              We conclude that the district court did not abuse its

discretion     in     denying       Scott’s       motion     to    withdraw          his   guilty

plea.      Contrary        to     Scott’s      assertions         on    appeal,      his    trial

counsel did not withhold germane information from him during the

plea    negotiation        process,       as    the    DNA    report      prepared         by   the

defense’s expert witness was not available at the time Scott

pled    guilty.           Moreover,       although        Scott        places     significant

emphasis      on    the    DNA     report,       the     report        does    not    establish

Scott’s innocence.               To the contrary, the report confirmed the

findings of the Government’s expert witness.                              In addition, the

trial court conducted a thorough Fed. R. Crim. P. plea colloquy

with Scott prior to accepting his guilty plea.

              Accordingly, we affirm the district court’s judgment.

We    dispense      with    oral    argument          because      the    facts      and    legal

contentions        are    adequately        presented        in   the     materials        before

this court and argument would not aid the decisional process.



                                                                                       AFFIRMED



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