                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-5141


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GRATINIANO CASTILLO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:07-cr-00128-D-1)


Submitted:   July 28, 2010                 Decided:   August 16, 2010


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant.     George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Gratiniano        Castillo           pled     guilty    to      conspiring           to

distribute and possess with intent to distribute five kilograms

or more of powder cocaine, in violation of 21 U.S.C. § 846

(2006).        Although Castillo expressed a desire to withdraw his

plea, the district court considered and denied that motion and

sentenced Castillo to 480 months of imprisonment, within the

advisory Guidelines range calculated at sentencing.                                      Castillo

timely appealed.              On appeal, Castillo argues that the district

court erred when it denied his motion to withdraw his guilty

plea; he also seeks to challenge the length of his sentence.

The Government filed an answering brief in which it requested

that   this     court         enforce     the       waiver     provision        in      the    plea

agreement and dismiss Castillo’s appeal of his sentence.

               This      court   reviews        a    district        court’s       denial      of    a

motion    to    withdraw         a   guilty         plea   for    abuse       of     discretion.

United States v. Lambey, 974 F.2d 1389, 1393-94 (4th Cir. 1992).

Fed.   R.   Crim.        P.    32    provides         that    prior     to     sentencing,          a

district court may authorize the withdrawal of a guilty plea if

the defendant shows a “fair and just” reason.                            A “fair and just”

reason to withdraw a plea is one that “challenges either [1] the

fairness       of     the     Rule   11    proceeding            wherein       the      defendant

tendered,       and      the     court     accepted,           the     plea        or   [2]     the

fulfillment         of    a    promise     or        condition        emanating         from    the

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proceeding.”     Lambey, 974 F.2d at 1394.             In determining whether

a defendant’s proffered reason is “fair and just,” the district

court must balance 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).

             Here, the district court did not abuse its discretion

when it denied Castillo’s motion to withdraw his guilty plea.

First, Castillo does not allege, nor does the record reflect,

that   the   district    court’s   Rule      11   colloquy    was    inadequate.

Therefore,     the   district   court       was   entitled   to     rely    on   its

properly conducted plea colloquy and Castillo’s statements made

under oath.      Moreover, the district court did not clearly err

when   it    concluded   that   Castillo      failed    to   present       credible

evidence showing that his plea was not knowing and voluntary.

See Moore, 931 F.2d at 250 (clear error standard applies to

district court’s findings).



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               The    district       court     carefully          examined          the   Moore

factors,     but     concluded       that    they     did   not    weigh       in    favor   of

withdrawal.          For example, although Castillo argued that he did

not   expect     the    probation       officer        to   attribute         such    a   large

amount    of    cocaine       to   him,     thereby      exposing        him    to    a   harsh

Guidelines         sentencing        recommendation,          the        district         court

specifically advised Castillo that he faced a potential sentence

of 360 months to life imprisonment.                     The written plea agreement

also notified Castillo of the potential for a life sentence.

Finally,       the    court    appointed          a   translator         to    ensure     that

Castillo     understood        the    Rule    11      colloquy     and    the       sentencing

hearing. *      Thus, we conclude that the district court did not

abuse     its        discretion       in     evaluating       the        Moore        factors.

Accordingly, we affirm the district court’s denial of Castillo’s

motion to withdraw his guilty plea.

               Pursuant to a plea agreement, a defendant may waive

the right to appeal if that waiver is knowing and intelligent.

United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).

To determine whether a waiver is knowing and intelligent, this


      *
       Castillo is a native of Columbia who only speaks Spanish.
The district court inquired whether Castillo would be able to
understand   the   proceedings   with  the   assistance   of  an
interpreter, and Castillo responded that he would. Accordingly,
the district court swore in a translator to translate court
proceedings from English into Spanish on Castillo’s behalf.



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court examines “the totality of the circumstances, including the

experience and conduct of the accused, as well as the accused’s

educational background and familiarity with the terms of the

plea agreement.”         United States v. General, 278 F.3d 389, 400

(4th Cir. 2002) (internal quotation marks and citation omitted).

             Generally, if the district court fully questioned a

defendant regarding the waiver of his right to appeal during the

Rule    11   colloquy,   the   waiver   is   both    valid   and   enforceable.

United States v. Johnson, 410 F.3d 137, 151 (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.

This court will enforce a valid waiver so long as “the issue

being    appealed   is   within   the   scope   of    the    waiver.”   United

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).

             Here, the plea agreement contained an appellate waiver

as to Castillo’s sentence.        In relevant part, Castillo agreed:


        [t]o   waive  knowingly   and expressly   all  rights,
        conferred by 18 U.S.C. § 3742, to appeal whatever
        sentence is imposed, including any issues that relate
        to the establishment of the advisory Guidelines range,
        reserving only the right to appeal from a sentence in
        excess of the applicable advisory Guideline range that
        is established at sentencing.

On appeal, Castillo does not contend that his appeal waiver was

not knowing and voluntary, nor does the record support such a

conclusion.


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            Indeed, at the Rule 11 hearing, the district court

specifically     called    attention    to     the   appeal       waiver.   Castillo

testified    that    he    understood       the    terms     of    the   agreement,

including the appeal waiver, and that he had reviewed it with

his attorney.       Therefore, we conclude that the appeal waiver is

valid and enforceable.

            On   appeal,    Castillo    argues       that    the    district    court

abused its discretion in imposing a harsh sentence; however, 480

months’ imprisonment is within the recommended Guidelines range

of 360 months to life imprisonment established at sentencing.

Thus,   Castillo’s     sentencing      claim      falls     squarely     within   the

scope of his valid appeal waiver.

            Accordingly,      we    affirm        Castillo’s       conviction     and

dismiss the appeal as to Castillo’s sentencing challenge.                          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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