UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4478
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY CURRY, a/k/a Ace,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-02-35)
Submitted: January 23, 2006 Decided: February 7, 2006
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
John J. Pizzuti, MCCAMIC, SACCO & PIZZUTI, PLLC, Wheeling, West
Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Curry appeals from his conviction and 360-month
sentence imposed following his guilty plea to one count of
distribution of crack cocaine. On appeal, he challenges the
district court’s denial of his motion to withdraw his guilty plea.
He also asserts that the district court did not allow him to
challenge relevant conduct at sentencing, and he attempts to raise
claims under Blakely v. Washington, 542 U.S. 296 (2004). We affirm
Curry’s conviction and dismiss his appeal of his sentence, as he
waived the right to challenge his sentence in his plea agreement.
The district court’s denial of a motion to withdraw a
guilty plea is reviewed for abuse of discretion. 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, even before
sentencing. United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). Rather, the defendant bears the burden of demonstrating
that a “fair and just reason” supports his request to withdraw his
plea. Id. The central question is whether the Fed. R. Crim. P. 11
hearing was properly conducted. United States v. Puckett, 61 F.3d
1092, 1099 (4th Cir. 1995).
This court closely scrutinizes the Rule 11 colloquy and
attaches 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 have reviewed the Rule 11
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colloquy and the record in light of the relevant factors, see
Moore, 931 F.2d at 248, and we find no abuse of discretion by the
district court in denying Curry’s motion to withdraw his guilty
plea. Thus, we affirm Curry’s conviction.
Turning to Curry’s challenges to his sentence, we note
that Curry waived the right to “appeal any sentence which is within
the maximum provided in the statute of conviction or in the manner
in which that sentence was determined on any ground.” Whether a
defendant has effectively waived the right to appeal is an issue of
law we review de novo. United States v. Marin, 961 F.2d 493, 496
(4th Cir. 1992). An appeal waiver is valid if the defendant
knowingly and intelligently agreed to waive his right to appeal.
United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).
Our review of the record reveals that the district court
conducted an adequate Rule 11 plea colloquy. The court questioned
Curry regarding the appeal waiver, and he stated that he understood
the waiver. Curry presents no basis to suggest that the appeal
waiver was not knowingly and intelligently made. Moreover, the
subsequent issuance of Blakely and its progeny does not invalidate
an otherwise valid waiver. Id. at 173 (upholding waiver, because
Blick was sentenced under the guidelines, in accordance with his
agreement and his expectations). Accordingly, Curry’s attempts to
challenge his sentence on appeal are foreclosed by the waiver
provisions in his plea agreement.
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Based on the foregoing, we affirm Curry’s conviction. We
dismiss his appeal from his sentence based on his waiver. 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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