                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4331


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RODNEY LAMAR SELF,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00028-LHT-1)


Submitted:   July 14, 2010                 Decided:   August 18, 2010


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant.       Edward R. Ryan, United States
Attorney,   Jennifer  Lynn   Dillon,   Assistant   United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Rodney   Lamar     Self    pleaded       guilty      to   one    count    of

unlawful possession of a firearm after a felony conviction, in

violation of 18 U.S.C. § 922(g)(1) (2006).                     After a Presentence

Report (PSR) recommended that Self be subject to an enhanced

sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e) (2006), Self moved to withdraw his guilty plea, arguing

that   his     attorney   had    told    him     he    would      receive     a    lesser

sentence and had failed to discuss the option of filing pretrial

suppression motions.          Following a hearing, the district court

denied   the    motion,   concluding          that    none   of    the   six      factors

enumerated in United States v. Moore, 931 F.2d 245, 248 (4th

Cir. 1991), weighed in favor of granting the motion.                         Self filed

a timely appeal, arguing that the district court should have

granted his motion to withdraw and committed reversible error

during his sentencing.          We affirm.

             Self’s   plea    agreement        with    the   Government        provided

that, regarding the sentence available to him:

       The maximum sentence is ten years imprisonment . . . .
       However, if, pursuant to 18 U.S.C. § 924(e)(1), the
       defendant has three previous convictions by any court
       for a violent felony or serious drug offense, the
       maximum sentence is life imprisonment, and a fine of
       $250,000.    Under Section 924(e)(1), the statutorily
       required    minimum   sentence    is   fifteen   years
       imprisonment and three years supervised release.

                                       . . . .


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     [T]he defendant is further aware that the Court has
     not yet determined the sentence, that any estimate
     from any source, including defense counsel, of the
     likely sentence is a prediction rather than a promise,
     and that the Court has the final discretion to impose
     any sentence up to the statutory maximum for each
     count.

            Self’s plea agreement also contained an appeal waiver,

which    provided      that    Self     waived    his   right          to   appeal     “the

conviction    and/or     the     sentence      except      for:         (1)    claims       of

ineffective       assistance       of     counsel       or      (2)         prosecutorial

misconduct.”      (emphasis omitted).

             During the guilty plea colloquy conducted pursuant to

Federal Rule of Criminal Procedure 11, Self acknowledged that he

understood the charges against him, the potential penalties he

faced, and the consequences of his plea.                       Self confirmed that

the plea was not the result of “coercion, threats, or promises

other than those contained in the written plea agreement.”                             Self

stated    that    he    had    discussed       the   plea    agreement          with       his

attorney,     a   public      defender,        and   was     satisfied          with       his

assistance.       Self also voiced his understanding that he waived

his right to appeal his conviction and sentence and accepted the

limitations on his right to appeal.

             Self’s    PSR    recommended        that   Self      be    subject       to    an

enhanced    sentence     under    the    ACCA     because      he   had       eight    prior

convictions for armed robbery.                 Consistent with the ACCA, the

PSR concluded that Self was subject to a statutory mandatory

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minimum of fifteen years imprisonment.                   With a total offense

level of 31 and a criminal history category VI, the guidelines

range was 188 months to 235 months imprisonment.

            Five    months     after     his   guilty    plea,    Self,    who    had

subsequently      retained     private    counsel,      moved    to   withdraw    his

plea.     At a hearing on the motion, Self testified that he did

not discuss several issues with his prior attorney, most notably

the possibility that he could move to suppress evidence obtained

during a traffic stop and statements made to investigators, and

that he did not closely read the plea agreement.                          Self also

testified that he met with counsel on three occasions, and his

attorney told him that he would receive no more than ten years

imprisonment      and    his   Guidelines      range    would    be   51-63    months

imprisonment.

            The district court denied Self’s motion to withdraw.

The district court concluded that much of Self’s testimony at

the     hearing    was    “flatly      contradicted      by     his   signed     plea

agreement and the answers that he gave under oath during the

Rule 11 hearing.”          The district court observed that the plea

agreement informed Self that he could be subject to the ACCA and

that Self expressed confidence in his attorney during the Rule

11 hearing.       The district court also noted that the five-month

delay in filing the motion weighed against Self because it could



                                          4
prejudice the Government and result in the waste of judicial

resources.

               The     district       court          adopted      the     PSR,     downwardly

departed       one    level    to    level    30,         and   sentenced    Self     to    the

statutory mandatory minimum of 180 months imprisonment.



                                              II.

               Self first argues that the district court should have

granted his motion to withdraw his guilty plea.                              We review the

denial    of    a     motion    to   withdraw         a    guilty   plea     for    abuse    of

discretion.          United States v. Dyess, 478 F.3d 224, 237 (4th Cir.

2007).

               Federal Rule of Criminal Procedure 11 authorizes the

withdrawal of a guilty plea before sentencing if “the defendant

can show a fair and just reason for requesting the withdrawal.”

Fed. R. Crim. P. 11(d)(2)(B).                         A defendant has no “absolute

right” to withdraw a guilty plea, and the district court has

discretion to decide whether a “fair and just reason” exists.

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

“The   most      important      consideration             in    resolving    a     motion   to

withdraw a guilty plea is an evaluation of the Rule 11 colloquy

at   which     the     guilty      plea    was       accepted.”          United    States    v.

Bowman,    348       F.3d   408,     414   (4th       Cir.      2003).     Accordingly,       a

district court’s “inquiry is ordinarily confined to whether the

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underlying    plea   was   both   counseled      and    voluntary.”          United

States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (internal

quotation marks omitted).         “A properly conducted Rule 11 guilty

plea colloquy leaves a defendant with a very limited basis upon

which to have his plea withdrawn.”          Bowman, 348 F.3d at 414.

           In considering a motion to withdraw a guilty plea, we

have promulgated a list of non-exhaustive factors, including:

     (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.

Ubakanma, 215 F.3d at 424.        See also United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991).

           Applying     these     standards,       we    conclude      that    the

district court did not abuse its discretion in denying Self’s

motion.      The   district    court   found    that    each    of   these    Moore

factors   weighed    against    Self   in   this    case,      particularly    the

first, second, and fourth factors.             On appeal, Self contests the

district court’s ruling on those three factors, arguing that he

has offered evidence of his innocence, and that he lacked close

assistance of counsel, rendering his plea unknowing.                     We find

these claims unavailing.          Regarding his legal innocence, Self


                                       6
claims that the only evidence that he possessed the handgun that

is the basis for the conviction was that he honored a police

request to turn over the weapon, and that acting pursuant to

such “public authority” would leave him legally innocent to the

§ 922(g) charge.        See Fed. R. Crim. P. 12.3; see also United

States v. Pitt, 193 F.3d 751 (3d Cir. 1999) (holding that public

authority     defense    applies       when     government     agent     authorized

defendant to commit an otherwise illegal act).                    Self overlooks

the fact, however, that he also gave extensive statements to

investigators       detailing    his   participation      in   the      robbery   and

theft of multiple guns, including the handgun in question.

             Regarding the first and fourth factors, Self relies on

his testimony before the district court that his counsel never

informed him of the option of filing suppression motions and

affirmatively told him that he would get no more than ten years

imprisonment.        Self argues that his statements during the Rule

11 colloquy that he was satisfied with his attorney were true at

that time — he did not become unsatisfied until he received the

PSR   and   became    aware    that    he   faced   a   fifteen-year      mandatory

minimum sentence.

             Self    does     not     dispute,      however,     that     his     plea

agreement specifically mentioned both that he might be subject

to the ACCA and that he should not rely on statements from his

counsel     regarding   a     potential     sentence.     Self    also     does   not

                                            7
dispute that he signed the plea agreement and that, during the

Rule 11 colloquy, he stated that he had read and understood all

of the terms in the agreement.                 Thus, Self cannot show that his

plea was unknowing or otherwise involuntary.

              The remaining Moore factors — which Self does not even

contest   —    either     favor      the   Government    or    are   neutral    and,

accordingly, the district court did not abuse its discretion in

denying Self’s motion.

              Next, Self argues that his sentence should be vacated

because the Government failed to provide proper notice that he

might   be     subject    to    an    enhancement      under   the    ACCA.      The

Government requests enforcement of Self’s appellate waiver as to

this claim.      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).              Generally, if the district court

fully questions a defendant regarding the waiver of his right to

appeal during the Rule 11 colloquy, the waiver is both valid and

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

(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68

(4th Cir. 1991).         Whether a defendant validly waived his right

to appeal is a question of law that we review de novo.                         Blick,

408 F.3d at 168.

              An appeal waiver does not, however, bar the appeal of

a   sentence    imposed    in     excess    of   the   statutory     maximum    or   a

                                           8
challenge to the validity of a guilty plea.                 United States v.

General, 278 F.3d 389, 399 n.4 (4th Cir. 2002); United States v.

Marin, 961 F.2d 493, 496 (4th Cir. 1992).

            In this case, Self’s plea agreement provided that Self

waived his right to appeal “the conviction and/or the sentence

except for:     (1) claims of ineffective assistance of counsel or

(2) prosecutorial misconduct.”          (emphasis omitted).          During the

Rule 11 colloquy, the magistrate judge confirmed that Self had

graduated high school and taken two years of college courses and

was   not   under   the   influence    of    any   drugs   or   alcohol.      The

magistrate    judge   also   made     specific     reference    to   the   appeal

waiver, and Self stated that he understood its ramifications.

On appeal, Self does not argue that either of the situations

described in General or Marin apply, * and the issue raised is

within the scope of this broad waiver.              Accordingly, we decline

to address it.

                                      III.

            For the foregoing reasons, we affirm Self’s conviction

and sentence.       We dispense with oral argument because the facts


      *
       Although Self’s sentence of fifteen years imprisonment
exceeds the statutory maximum for a conviction under 18 U.S.C.
§ 922(g)(1), the plea agreement specifically stated that Self
could be subject to the ACCA, which would carry with it a
fifteen year mandatory minimum.    Accordingly, Self’s sentence
was not above the statutory maximum within the meaning of Marin
or General.


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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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