UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4594
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE FUENTES-GONZALES, a/k/a Pepe, a/k/a Pepe
Fuentes, a/k/a Jose Fuentes,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-01-221; CR-02-7)
Submitted: July 27, 2005 Decided: September 28, 2005
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Fuentes-Gonzales appeals his convictions and 188
month sentence for illegal reentry as an alien following
deportation, in violation of 8 U.S.C. § 1326 (2000), and conspiracy
to possess with intent to distribute methamphetamine, in violation
of 21 U.S.C. §§ 841, 846 (2000). Finding no error, we affirm in
part and dismiss in part.
Fuentes-Gonzales first claims that the district court
abused its discretion in denying his motion to withdraw his guilty
plea. A district court’s denial of a motion to withdraw a guilty
plea is reviewed for an abuse of discretion. See United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant does not
have an absolute right to withdraw a guilty plea. United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991). Rather, a defendant
bears the burden of demonstrating that a “fair and just reason”
supports his request to withdraw his plea. Id. Factors considered
in determining whether a defendant has shown a fair and just reason
for withdrawing his guilty plea include: (1) whether the defendant
has offered credible evidence that the plea was not knowing or
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 the
defendant had close assistance of competent counsel; (5) whether
withdrawal will cause prejudice to the government; and (6) whether
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permitting withdrawal will inconvenience the court and waste
judicial resources. Id. Reviewing these factors as they apply to
Fuentes-Gonzales’ guilty plea, we cannot conclude that the district
court abused its discretion in denying the motion to withdraw the
plea. Accordingly, we affirm the district court’s decision as to
this claim.
Fuentes-Gonzales also claims that the district court
violated his Sixth Amendment right to trial by jury when it
sentenced him in accordance with the federal sentencing guidelines.
Criminal defendants may waive their statutory right to direct
appeal as part of a plea agreement with the government. 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.
Where a waiver of appellate rights has been knowingly and
voluntarily agreed to, both parties are entitled to the benefits of
their bargain. See United States v. Ringling, 988 F.2d 504, 506
(4th Cir. 1993). Moreover, a waiver is not rendered unknowing,
involuntary, or unenforceable based on the subsequent opinion of
the United States Supreme Court in United States v. Booker, 125 S.
Ct. 738 (2005). See United States v. Johnson, 410 F.3d 137 (4th
Cir. 2005); United States v. Blick, 408 F.3d 162 (4th Cir. 2005).
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Our review of the plea agreement, and the transcript of
Fuentes-Gonzales’ plea colloquy, discloses he was adequately
informed of the nature and scope of his appellate waiver. We also
conclude that any claim regarding Fuentes-Gonzales’ sentencing
under the mandatory sentencing guidelines scheme falls squarely
within the appellate waiver. Accordingly, we dismiss the appeal as
to this claim.
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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