UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4138
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWIN ARNOLDO REYES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge.
(CR-01-533-PJM)
Submitted: September 27, 2004 Decided: November 9, 2004
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bradley A. Goldbloom, SIEGEL & HYATT, LLC, Baltimore, Maryland, for
Appellant. Michael Clayton Hanlon, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland; Deborah A. Johnston, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edwin Arnoldo Reyes appeals from his conviction and
sentence entered after he pled guilty to conspiracy to distribute
and to possess with intent to distribute five or more kilograms of
cocaine. Reyes’ attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Although counsel states
there are no meritorious issues for appeal, he challenges the
district court’s denial of Reyes’ motion to withdraw his guilty
plea. Reyes has filed two supplemental pro se briefs, challenging
his sentence under the sentencing guidelines and under the Supreme
Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).
In accordance with Anders, we have considered the briefs and
examined the entire record for meritorious issues. Finding no
error, we affirm.
Where, as here, a defendant sought to withdraw his guilty
plea before sentencing, he must demonstrate a “fair and just
reason” for withdrawal of the plea. 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 upon which to grant a withdrawal.” United
States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003), cert. denied,
124 S. Ct. 1523 (2004). The district court’s denial of a motion to
withdraw a guilty plea is reviewed for abuse of discretion. United
States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).
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In determining whether a defendant has shown a “fair and
just reason” to withdraw his guilty plea, a court examines the
following 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). The
most important consideration in resolving a motion to withdraw a
plea, however, is whether the Rule 11 plea colloquy was properly
conducted. Bowman, 348 F.3d at 414. A court should closely
scrutinize the Rule 11 hearing and attach a strong presumption that
the plea is final and binding if the Rule 11 proceeding is
adequate. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.
1992).
We find that the district court did not abuse its
discretion in denying Reyes’ motion to withdraw his plea. The
transcript of the Rule 11 colloquy supports the district court’s
conclusion that Reyes knowingly and voluntarily entered his guilty
plea. The plea agreement, the counts of conviction, the possible
sentences, and the factual basis were exhaustively explained to
Reyes, and he testified under oath that he understood. Further,
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the district court explicitly found that Reyes’ testimony at the
motion to withdraw hearing was not credible, and such a finding is
not reviewable on appeal. See United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997).
Regarding the other factors, Reyes did not contest his
guilt; he merely argued for a different sentence. Next, Reyes’
guilty plea came on the eve of trial, and his motion to withdraw
was filed five months later. Based on this delay, the district
court found that the Government would be prejudiced if it had to
again marshall witnesses for a trial. The court also found that
Reyes’ complaints regarding his attorney were not credible. Thus,
each of the factors weighed against withdrawal of the plea, and the
district court did not abuse its discretion by denying Reyes’
motion.
In his plea agreement, Reyes waived the right to
challenge the guideline calculation at sentencing (except for
criminal history) and on appeal (except for upward or downward
departures). The Government and Reyes agreed to certain
enhancements and adjustments and determined that no other
adjustments would be made. Although no upward or downward
departures were made at sentencing, Reyes seeks to appeal the
calculation of his sentence on numerous grounds.
A criminal defendant may waive his statutory right to
direct appeal as part of a plea agreement with the Government.
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United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). For a
waiver to be effective, the plea agreement must be entered into
knowingly and voluntarily, and the district court must specifically
inquire as to the Defendant’s knowledge of the waiver provision.
Id. As discussed above, the plea agreement was knowingly and
voluntarily entered into, and Reyes’ testimony to the contrary was
found not credible. In addition, the Rule 11 hearing transcript
shows that the court apprised Reyes of the appellate waiver
provision. Accordingly, Reyes’ waiver is valid and enforceable and
bars his attempts to challenge the calculation of his sentence
under the sentencing guidelines.
Finally, Reyes challenges his sentence under Blakely.
Because we recently decided that Blakely did not invalidate a
sentence imposed within the federal guidelines, we find that any
Blakely claim is without merit. See United States v. Hammoud, __
F.3d __, 2004 WL 2005622 (4th Cir. Sept. 8, 2004), petition for
cert. filed (U.S. Aug. 6, 2004) (No. 04-193).
Accordingly, we grant Reyes’ motion to supplement and
affirm his conviction and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this court
to withdraw from representation at that time. Counsel’s motion
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must state that a copy thereof was served on Reyes. 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
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