UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4721
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID DEVONNE BATTISTE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Malcolm J. Howard, Senior District Judge. (4:14-cr-00058-H-1)
Submitted: September 27, 2018 Decided: October 3, 2018
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
Brian Michael Aus, Durham, North Carolina, for Appellant. Robert J. Higdon, Jr.,
United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney,
Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Devonne Battiste pled guilty, pursuant to a written plea agreement, to
carjacking, in violation of 18 U.S.C. § 2119(1) (2012), and discharging a firearm in
furtherance of a crime of violence (carjacking), in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (2012). The district court sentenced Battiste as a career offender to
324 months’ imprisonment. On appeal, Battiste challenges his career offender
designation, his § 924(c) conviction, and the district court’s denial of his motion to
withdraw his guilty plea. The Government has moved to dismiss Battiste’s appeal based
on the appellate waiver in his plea agreement. We affirm in part and dismiss in part.
We will enforce a defendant’s waiver of his right to appeal his conviction and
sentence if the waiver “is valid and the issue appealed is within the scope of the waiver.”
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (internal quotation marks
omitted). “We review the validity of an appeal waiver de novo,” considering “the totality
of the circumstances.” Id. (internal quotation marks omitted). A valid waiver is one that
is “knowing and voluntary.” United States v. Tate, 845 F.3d 571, 574 n.1 (4th Cir. 2017).
“Generally, if a district court questions a defendant regarding the waiver of appellate
rights during the Rule 11 colloquy and the record indicates that the defendant understood
the full significance of the waiver, the waiver is valid.” Id. (internal quotation marks
omitted).
Battiste does not challenge the validity of the waiver. Moreover, upon review of
the plea agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that
the appeal waiver in Battiste’s plea agreement is valid, as he entered it knowingly and
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voluntarily. See Tate, 845 F.3d at 574 n.1. Thus, the waiver is enforceable as to issues
within its scope.
Battiste contests the district court’s denial of his motion to withdraw his guilty
plea. Although Battiste agreed to waive the right to appeal his convictions in his plea
agreement, a defendant cannot waive a colorable claim that his plea was not knowing and
voluntary. See, e.g., United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994).
Accordingly, Battiste’s appeal waiver does not foreclose our review of the validity of his
guilty plea.
We review the denial of a motion to withdraw a guilty plea for abuse of discretion.
United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). To withdraw a guilty plea
before sentencing, a defendant must “show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “The defendant bears the burden of
demonstrating that withdrawal should be granted.” United States v. Thompson-Riviere,
561 F.3d 345, 348 (4th Cir. 2009) (brackets and internal quotation marks omitted). When
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 motion to
withdraw a guilty plea, courts consider the following non-exhaustive list of 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 to withdraw the plea;
(4) whether the defendant had the close assistance of competent counsel;
(5) whether withdrawal will cause prejudice to the government; and
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(6) whether [withdrawal] will inconvenience the court and waste judicial
resources.
Nicholson, 676 F.3d at 384 (citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991)).
The district court conducted a comprehensive Rule 11 hearing prior to accepting
Battiste’s guilty plea and Battiste fails to overcome the strong presumption that his guilty
plea is final and binding. See Lambey, 974 F.2d at 1394. Battiste also makes no credible
assertion of legal innocence, and waited almost six months to move to withdraw his plea.
Further, he swore under oath that he was satisfied with counsel’s representation at the
plea hearing and, beyond his bare assertions, Battiste fails to point to any evidence of
ineffectiveness. See Christian v. Ballard, 792 F.3d 427, 444 (4th Cir. 2015) (“Solemn
declarations in open court carry a strong presumption of verity . . . .” (alteration and
internal quotation marks omitted)). Accordingly, we conclude that the district court did
not abuse its discretion in denying Battiste’s motion to withdraw his guilty plea, and we
affirm as to this claim.
Battiste waived the right to appeal his convictions and sentence, including any
sentence below or within the advisory Sentencing Guidelines range established at
sentencing. Accordingly, his challenge to his career offender designation falls within the
scope of his appeal waiver, and we grant the Government’s motion to dismiss as to this
claim. See United States v. Brown, 232 F.3d 399, 404 (4th Cir. 2000) (holding incorrect
application of career offender enhancement did not fall outside the scope of valid appeal
waiver).
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Battiste next claims that he is innocent of his § 924(c) conviction because
carjacking does not constitute a crime of violence. “We will refuse to enforce an
otherwise valid waiver if to do so would result in a miscarriage of justice.” United
States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016). “A proper showing of actual
innocence is sufficient to satisfy the miscarriage of justice requirement,” thereby
rendering the claim outside the scope of the waiver. Id. (internal quotation marks
omitted). Battiste has not made a cognizable showing of actual innocence, as his
challenge to his § 924(c) conviction is directly foreclosed by United States v. Evans, 848
F.3d 242 (4th Cir.) (holding that carjacking is crime of violence under § 924(c)’s force
clause), cert. denied, 137 S. Ct. 2253 (2017). Thus, Battiste’s § 924(c) claim falls within
the scope of the appellate waiver and we grant the Government’s motion to dismiss as to
this claim as well.
Accordingly, we affirm the district court’s denial of Battiste’s motion to withdraw
his guilty plea and grant the Government’s motion to dismiss as to the remainder of the
appeal. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
DISMISSED IN PART
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