UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHONG DINH TRAN, a/k/a Tran Tran, a/k/a Randy Tran,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:13-cr-00645-WDQ-1)
Submitted: August 27, 2015 Decided: September 1, 2015
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Woll, WOLL & WOLL, PA, Bethesda, Maryland, for
Appellant. Leo Joseph Wise, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phong Dinh Tran pleaded guilty to conspiracy to commit bank
fraud, in violation of 18 U.S.C. § 1349 (2012). On appeal, he
argues that the district court erred in denying his motion to
withdraw his guilty plea. The Government has filed a motion to
dismiss the appeal pursuant to the appellate waiver contained in
Tran’s plea agreement. We deny the motion to dismiss and
affirm.
“It is well settled that a criminal defendant may waive the
statutory right to appeal his sentence.” United States v.
Archie, 771 F.3d 217, 221 (4th Cir. 2014), cert. denied, 135 S.
Ct. 1579 (2015). “[T]he waiver will be enforced to preclude a
defendant from appealing a specific issue if the record
establishes that the waiver is valid and the issue being
appealed is within the scope of the waiver.” Id. We review an
appellate waiver’s validity de novo. United States v.
Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).
We conclude that Tran’s appellate waiver does not prevent
our review of the district court’s denial of his motion to
withdraw his guilty plea. Even a valid waiver of appellate
rights will not foreclose a colorable constitutional challenge
to the validity of a guilty plea. United States v. Attar, 38
F.3d 727, 733 n.2 (4th Cir. 1994). Because Tran’s motion to
2
withdraw was premised on his claim that his plea was not
knowing, we deny the government’s motion to dismiss the appeal.
We review the denial of a plea withdrawal motion for abuse
of discretion. United States v. Thompson-Riviere, 561 F.3d 345,
348 (4th Cir. 2009). To withdraw a guilty plea prior to
sentencing, a defendant must “show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).
“[T]he defendant bears the burden of demonstrating that
withdrawal should be granted.” Thompson-Riviere, 561 F.3d at
348 (internal quotation marks omitted). Where, as here, the
district court substantially complies with the Rule 11
requirements, the defendant must overcome a strong presumption
that his guilty plea is final and binding. United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
In deciding a plea withdrawal motion, the district court
must consider the six factors established in United States v.
Moore, 931 F.2d 245 (4th Cir. 1991). Thompson-Riviere, 561 F.3d
at 348. We have reviewed the record in this case and, after
carefully considering these factors, conclude that the district
court did not abuse its discretion in denying Tran’s motion to
withdraw his guilty plea.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
3
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
4