                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4965


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTOINE DEMETRIUS LUNDY, a/k/a Buff,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:12-cr-00106-RGD-DEM-3)


Argued:   January 28, 2015                 Decided:   March 10, 2015


Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Jon Michael Babineau, RIDDICK BABINEAU, PC, Norfolk,
Virginia, for Appellant.    Benjamin L. Hatch, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.     ON
BRIEF: Dana J. Boente, United States Attorney, Alexandria,
Virginia, Darryl J. Mitchell, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        In January 2013, Appellant–Defendant Antoine Lundy pleaded

guilty to two federal offenses.                   Four months later, on the day

before he was scheduled for sentencing, Lundy moved to withdraw

his plea.        He claimed that he was legally innocent and had

pleaded guilty only to protect his wife from prosecution.                       After

delaying Lundy’s sentencing and holding a two-day hearing, the

district court denied Lundy’s motion to withdraw.                     On appeal, we

affirm that decision.



                                             I.

                                             A.

        This   case    arises    from    a       2012   law-enforcement     sting     of

cocaine dealers in Norfolk, Virginia.                     Law enforcement used an

undercover informant (“the informant”) to conduct a series of

controlled     purchases.         On    multiple        occasions,   the    informant

bought cocaine from Willard Perry and Sherman Henderson.

     On March 20, 2012, the informant arranged to buy a half-

ounce of cocaine from Perry at the informant’s residence.                        Soon

after    talking      with    Perry,    however,        the   informant    received    a

phone call from Appellant–Defendant Antoine Lundy.                         Lundy said

that Perry “had been called away” and that Lundy would meet the

informant instead.           J.A. 69.



                                             2
         At approximately 5:50 p.m., an officer observed a white

Chevrolet car arrive outside the informant’s residence.                                The

officer saw a woman driving the car, which was registered to

Lundy’s wife.       Lundy was a passenger.              While the woman waited in

the car, Lundy entered the residence and sold 13 grams of crack

cocaine to the informant for $550.

         After   obtaining   a   federal           indictment    against      Lundy,    law

enforcement      arrested    him    at     his      residence    on    July    16,   2012.

While there, officers seized three loaded firearms, two bags of

cocaine,     marijuana,      $2,370      in    cash,    and     ammunition.          Later,

Lundy admitted that he possessed at least one of the firearms in

furtherance of trafficking drugs.



                                              B.

         On November 20, 2012, the government filed a superseding

indictment, charging Lundy with five counts.                           On January 22,

2013, Lundy entered into a plea agreement and pleaded guilty to

two of the counts: conspiring to distribute cocaine under 21

U.S.C. § 846 (Count 1) and possessing a firearm in furtherance

of   a    drug   trafficking       crime      under     18    U.S.C.    § 924(c)(1)(A)

(Count 5).

         Under the plea agreement, the government “agree[d] not to

prosecute the defendant’s wife . . . for conduct described in

the indictment.”       J.A. 59.          In turn, Lundy agreed to “knowingly

                                              3
waive[] the           right      to    appeal    the    conviction         and    any    sentence

[with certain limited exceptions].”                              J.A. 57-58.         Lundy also

conceded        that      the    government       could      prove       certain     facts      that

implicated Lundy in the offenses. 1

      In accepting the plea agreement, the district court engaged

in the colloquy mandated by Rule 11 of the Federal Rules of

Criminal Procedure.               Lundy attested to the following: (i) he had

fully discussed the case with his attorney; (ii) he understood

that he was waiving certain rights; (iii) no one had threatened

him   or   made        any      promise    (outside         of    the    plea    agreement)      to

coerce     him       to       plead    guilty;    (iv) he          was    entering       the    plea

“freely        and    voluntarily”;        and     (v) he         was    pleading     guilty     to

Counts     1    and       5    because    he    was    “in       fact,   guilty     of    the   two

offenses.”           J.A. 44, 47.

      Lundy’s          counsel        described       the    plea       agreement’s      contents

before the district court, including the immunity provision for

Lundy’s wife.                 The court did not, however, inquire about the

immunity provision.                   As to the waiver-of-appeal provision, the

district court mentioned the waiver of Lundy’s “right to appeal

any sentence imposed,” but did not mention any waiver of the

right to appeal his conviction.                   J.A. 44.




      1
       Specifically, Lundy admitted that the government could
prove the facts as stated in Part I.A of this opinion.
                                                  4
                                       C.

      On June 5, 2013--the day before Lundy was scheduled to be

sentenced--Lundy moved to withdraw his guilty plea under Rule

11(d)(2)(B)    of   the     Federal   Rules      of    Criminal   Procedure.        He

claimed that he was legally innocent and that he pleaded guilty

only to protect his wife from prosecution.                    He also denied ever

having    a    “drug    distribution           relationship”      with    Perry     or

Henderson.     J.A. 82.       The district court then postponed Lundy’s

sentencing hearing and scheduled a hearing on Lundy’s motion.

      The court first heard testimony on October 17, 2013.                        Both

of the alleged co-conspirators, Henderson and Perry, testified

that they were partners.           They also said that they had supplied

Lundy with cocaine on multiple occasions over the years, and

that Lundy would cook the cocaine into crack (as twice witnessed

by   Perry).     As    to    the   March       20,    2012   controlled   purchase,

Henderson and Perry noted that they had originally arranged the

deal with the informant, but that Lundy in fact sold cocaine to

the informant and returned money to them.

      The court again heard testimony on November 6, 2013. 2                       The

informant and a police officer testified that Lundy had called



      2
       At the beginning of the second day, Lundy attempted to
withdraw the motion to withdraw his guilty plea.  The district
court prohibited Lundy from doing so because although Lundy
wanted to reaffirm his plea, he simultaneously maintained his
legal innocence.   See, e.g., J.A. 363-64 (Lundy claiming that
                                           5
the informant and arrived at the informant’s residence on March

20,   2010.     The   officer   said   that   an   unidentified   woman   was

driving   the   car   in   which   Lundy   arrived   and   that   the   car’s

license plate was registered to Lundy’s wife.

      Lundy’s brother testified that he and Lundy were working in

Richmond, Virginia on March 20, 2012, and did not return to

Norfolk until after 7:30 p.m.--that is, after when the drug deal

purportedly occurred.        He could not corroborate his assertion

with documentary evidence, however, because they were supposedly

paid with cash.

      Lundy’s wife testified that during March 2012, Lundy would

sometimes return home after 7:30 p.m.              She admitted, however,

that she owned a white Chevrolet Monte Carlo, similar to the car

described by the supervising police officer.            She also admitted

that, based on the search of her residence on July 16, 2012, she

faced state charges for possessing cocaine, although the charges

were ultimately dismissed after she pleaded guilty as a first

offender.     Va. Code Ann. § 18.2–251.

      Lastly, Lundy testified.         He denied his guilt, denied any

drug relationship with Perry or Henderson, and denied selling

drugs to the informant.         He claimed that he pleaded guilty only

because the government had threatened to prosecute his wife.



“[t]he stuff that was at [his] house was there because [he] had
a birthday party,” not for distribution).
                                       6
Although      he   conceded     that     his       story    meant    that    he    committed

perjury at the plea hearing, he claimed to have told the truth

since then.        And he accused Henderson, Perry, the informant, and

the police officer of lying about Lundy’s involvement.

       After hearing all the evidence, the district court orally

denied      Lundy’s   motion     to    withdraw.            In     doing   so,    the   court

credited the testimony of the government’s witnesses.                              The court

also       found   that   the   testimony          of   Lundy,      his    wife,    and   his

brother was not credible.                One week later, the district court

memorialized its decision in an order.                           On December 10, 2013,

the district court sentenced Lundy to 250 months (over 20 years)

in prison.



                                           II.

       On appeal, Lundy argues that the district court erred in

denying the motion to withdraw his guilty plea. 3                          Unsurprisingly,

the government disagrees.                The government also argues that we

should      dismiss   this      appeal    because          under    the    plea    agreement

Lundy has waived any right to challenge his conviction.                                   As

discussed below, we decline to enforce the waiver provision but

nevertheless find that the district court did not err.




       3
       Lundy’s counsel noted at oral argument that Lundy does not
challenge the actual plea’s validity.
                                               7
                                             A.

       We    first        address      the      government’s         waiver       argument.

Although the plea agreement provided that Lundy waived any right

to   appeal       his    conviction       and       sentence,      the    district     court

mentioned the waiver to Lundy only in regard to Lundy’s right to

appeal his sentence.               Generally, a defendant’s waiver of the

right to appeal is valid if (1) a judge questions a defendant

about the waiver of his appellate rights during the Rule 11

colloquy         and    (2) “the    record          indicates      that    the    defendant

understood the full significance of the waiver.”                            United States

v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (quoting United

States      v.    Thornsbury,       670    F.3d       532,   537    (4th    Cir.      2012)).

Because the judge did not question Lundy about the full scope of

the waiver provision and the record does not otherwise indicate

that   Lundy       understood       its    full       significance,        we    decline   to

enforce the waiver provision.                       Thus, we deny the government’s

motion to dismiss Lundy’s appeal.



                                             B.

       We   next       address   the      district      court’s     denial       of   Lundy’s

motion to withdraw his plea under Rule 11, a decision which we

review for abuse of discretion.                     United States v. Ubakanma, 215

F.3d 421, 424 (4th Cir. 2000).                       Although Rule 11 permits the

withdrawal of a guilty plea before sentencing, “[a] defendant

                                                8
has    no   ‘absolute   right’    to     withdraw      a   guilty     plea,       and       the

district court has discretion to decide whether a ‘fair and just

reason’ exists upon which to grant a withdrawal.”                          United States

v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (quoting Ubakanma,

215 F.3d at 424).         Because we find that the district court did

not abuse its discretion in denying Lundy’s motion, we affirm.



                                          1.

       In   considering     a     withdrawal         motion,    “the        inquiry         is

ordinarily     confined    to    whether       the   underlying       plea       was    both

counseled and voluntary.”          Id. at 414 (quoting United States v.

Willis, 992 F.2d 489, 490 (4th Cir. 1993)).                           “[R]eversal is

warranted     only   if    the    plea     proceedings         were        marred      by     a

fundamental     defect     that    inherently         resulted        in     a   complete

miscarriage     of   justice,      or     in    omissions       inconsistent            with

rudimentary demands of fair procedure.”                    Ubakanma, 215 F.3d at

425.

       To assist this inquiry, a court may consider 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


                                          9
            (6) whether it will inconvenience the court
            and waste judicial resources.

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).                          As

set forth below, we agree with the district court that none of

these factors supports Lundy’s request to withdraw his guilty

plea.



                                           2.

     The    first      factor     considers       “whether    the     defendant    has

offered credible evidence that his plea was not knowing or not

voluntary.”      Id.     Lundy argues that he acted involuntarily under

the government’s threat to prosecute his wife.

     Although there is nothing “per se invalid” about including

third-party immunity clauses in plea agreements, Harman v. Mohn,

683 F.2d 834, 838 (4th Cir. 1982), we have noted that “[s]pecial

care must be taken to determine the voluntariness of the plea in

such circumstances,” United States v. Morrow, 914 F.2d 608, 613

(4th Cir. 1990).         Coercion may be present if (1) “the defendant

demonstrates reluctance to enter a guilty plea, and does so only

because of pressure from the third party” or (2) the promise for

leniency is in regard to a third party for whom the “government

actually   lacks       probable    cause     to   charge.”      United    States    v.

Lemery,    998   F.2d     1011,    at   *2      (4th   Cir.   1993)    (per   curiam)

(unpublished table decision) (citations omitted).


                                           10
       In     this     case,    the     record       does        not     indicate      (i) any

reluctance      by     Lundy    to    plead    guilty       at    the    plea    hearing    or

(ii) that the plea was otherwise unknowingly or involuntarily

made.       Rather, the record shows that Lundy admitted under oath

that he was pleading guilty because he was in fact guilty of the

charged       offenses.         He     affirmed       his        plea    as     knowing    and

voluntary.      At no point did Lundy equivocate on his guilt.

       In addition, the district court did not err in finding that

the government would have had probable cause to charge Lundy’s

wife.       In other words, the government had evidence that “would

warrant the belief of a prudent person that [Lundy’s wife] had

committed . . . an offense.”                  Park v. Shiflett, 250 F.3d 843,

851 (4th Cir. 2001) (quoting United States v. Manbeck, 744 F.2d

360,    376    (4th     Cir.    1984)).            After    the        search    of    Lundy’s

residence,       his     wife    admitted          that     she        possessed      cocaine.

Moreover, evidence provided a basis to believe that she drove

Lundy to the informant’s residence on March 20.                               These facts--

tying her to cocaine and the underlying drug deal--would have

provided the government with probable cause to charge her as a

co-conspirator in the drug conspiracy under 21 U.S.C. § 846.

Thus, the district court rightly rejected Lundy’s argument that

the government coerced his plea with improper threats.




                                              11
                                                 3.

       The    second       factor      in    assessing           a    motion       to    withdraw

considers “whether the defendant has credibly asserted his legal

innocence.”        Moore, 931 F.2d at 248.                   Again, this factor does

not support Lundy’s request.                     Put simply, the evidence against

Lundy is overwhelming, and there is no basis for us to find that

he has credibly asserted his legal innocence.                                    In essence, he

rejects all that he said under oath, while spurning as lies all

the    testimony           of    his      co-conspirators,                 the     confidential

informant, and law enforcement.                       Notwithstanding Lundy’s claim,

we    defer   to     the    district        court’s       credibility            determination.

United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (citing

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)).                                   Here, the

credible testimony established that Lundy committed the charged

offenses.       Thus,       we   find       no    error     in       the    district      court’s

rejection of Lundy’s claim of legal innocence.



                                                 4.

       The district court also considered four other factors in

deciding Lundy’s motion.               See Moore, 931 F.2d at 248 (providing

that    a    court    analyze       the     delay      in   filing          the    motion,    the

presence of close assistance from competent defense counsel, the

prejudice to the government, and judicial economy).                                       Lundy’s

argument in regard to these factors is cursory and, in essence,

                                                 12
blames the government for Lundy’s delay in withdrawing his plea

until   the     day   before   sentencing.         After   considering   these

factors,   we    find   that   they   also   cut    against   Lundy’s    claim.

Thus, Lundy has offered no fair or just reason to withdraw his

plea, and we find no error in the district court’s denial of

Lundy’s motion.



                                      III.

     For   the    aforementioned      reasons,     we   affirm   the   district

court’s order and the appellant’s conviction.

                                                                       AFFIRMED




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