UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4926
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARLON PETTAWAY, a/k/a Chrome,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:09-cr-00017-MSD-FBS-1)
Submitted: February 23, 2011 Decided: March 17, 2011
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stephen A. Hudgins, STEPHEN A. HUDGINS, PC, Newport News,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Scott W. Putney, Assistant United States Attorney,
Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlon Pettaway appeals his conviction and 408-month
sentence for one count of retaliation against a witness in
violation of 18 U.S.C. § 1513(b)(1) (2006). His sole contention
on appeal is that the district court erred in denying his motion
to withdraw his guilty plea. The Government has filed a brief
urging the court to dismiss Pettaway’s appeal as barred by the
appellate waiver in Pettaway’s plea agreement. For the reasons
that follow, we affirm.
I. Appellate Waiver
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Whether a
defendant validly waived his right to appeal is a question of
law that this court reviews de novo. Id. at 168. “The validity
of an appeal waiver depends on whether the defendant knowingly
and intelligently agreed to waive the right to appeal.” Id. at
169 (citation omitted).
While the Government is correct that Pettaway agreed
to waive his right to appeal his conviction and sentence, this
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court has held that where, as here, an appellant challenges the
denial of his motion to withdraw his guilty plea on the basis
that the plea was not knowing or voluntary, an appeal waiver
does not prevent this court from hearing the appeal. See United
States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). We
therefore decline the Government’s invitation to dismiss the
appeal.
II. Motion to Withdraw Guilty Plea
Pettaway argues that the district court erred in
denying his motion to withdraw because at the time he entered
the guilty plea, he was suffering from an undiagnosed case of
sarcoidosis, an autoimmune condition. Pettaway claims that he
was so fatigued, and under such stress as a result of the
condition, that he chose to plead guilty rather than endure the
hardship of a trial. He claims that after the disease was
diagnosed and treated, he has able to fight the charges, and,
thus moved to withdraw the plea.
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). Instead, he must show that a “fair
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and just reason” supports his request to withdraw his plea. Id.
“[A] ‘fair and just’ reason . . . is one that essentially
challenges . . . the fairness of the Rule 11 proceeding.”
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en
banc).
In determining whether Pettaway has carried his
burden, the court considers 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 the 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.
Moore, 931 F.2d at 248. Although all the factors in Moore must
be given appropriate weight, the key in determining whether a
motion to withdraw should be granted 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 was adequate. Lambey, 974 F.2d at 1394.
We have reviewed the Moore factors and conclude that
Pettaway has not carried his burden. Pettaway argues that
because he was ill, the plea could not have been a voluntary
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decision. We do not agree. The illness did not affect
Pettaway’s ability to reason or understand the plea he was
entering. Rather, even taking Pettaway’s assertions as true, it
merely influenced his decision to plead guilty. It did not
render the decision involuntary. Moreover, Pettaway has not
credibly asserted his innocence, there was a significant delay
between the entry of the plea and the motion to withdraw the
plea, he had close assistance of counsel, and both the
Government and the courts would be burdened by allowing him to
withdraw his guilty plea. Based on our consideration of the
Moore factors, therefore, we conclude the district court did not
err in denying the motion to withdraw the guilty plea.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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