UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4383
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD DICKEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:10-cr-00305-LO-1)
Submitted: September 26, 2011 Decided: October 11, 2011
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Timothy D. Belevetz, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Dickey appeals his convictions for bank fraud,
in violation of 18 U.S.C. § 1344(1)-(2) (2006), and aggravated
identity theft, in violation of 18 U.S.C. § 1028A (2006). His
sole contention on appeal is that the district court erred in
denying his motion to withdraw his guilty plea. For the
following reasons, we affirm.
As an initial matter, the Government suggests that
Dickey’s appeal be dismissed as barred by the appellate waiver
in his plea agreement. Pursuant to a plea agreement, a
defendant may waive his appellate rights under 18 U.S.C. § 3742
(2006). United States v. Manigan, 592 F.3d 621, 627 (4th Cir.
2006). 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. An examination of the record indicates
that Dickey’s waiver was knowing and intelligent.
Although the Government correctly asserts the validity
of Dickey’s appellate waiver, such a waiver does not flatly
preclude appellate review of the district court’s denial of his
2
motion to withdraw his plea. See United States v. Attar, 38
F.3d 727, 733 n.2 (4th Cir. 1994). An appellate waiver in a
plea agreement will not bar appellate review of a district
court’s denial of a motion to withdraw the underlying guilty
plea when the motion contains a “colorable claim” that the plea
agreement “is tainted by constitutional error,” such as
involuntariness or the lack of the effective assistance of
counsel. See id. On appeal, Dickey has persisted in his claims
that his plea was involuntary due to the coercion of his
counsel, that his attorneys withheld germane information from
him during the plea process, and that they improperly refused to
file certain motions on his behalf. These claims implicate both
the voluntariness of Dickey’s plea and the effectiveness of his
counsel during the plea process. Therefore, despite his failure
to produce credible evidence to support his contentions, Dickey
has asserted the requisite “colorable” constitutional claim.
See id. Consequently, we decline the Government’s invitation to
dismiss the appeal.
Turning to the merits of Dickey’s appeal, the district
court’s denial of a motion to withdraw a guilty plea is reviewed
for abuse of discretion. United States v. Battle, 499 F.3d 315,
319 (4th Cir. 2009). In order to withdraw an otherwise valid
guilty plea before sentencing, a defendant must show that a
“fair and just reason” supports his request to do so. Fed. R.
3
Crim. P. 11(d)(2)(B); United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991). We have defined a “fair and just” reason as
one that in essence challenges the fairness of the Rule 11
proceeding. United States v. Lambey, 974 F.2d 1389, 1394
(4th Cir. 1992) (en banc). Where, as is the case here, the
district court substantially complies with the requirements of
Rule 11 in accepting a defendant’s guilty plea, that defendant
must overcome a strong presumption that his guilty plea is final
and binding. See id.
In determining whether Dickey 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. We have reviewed the record in this
case and, after carefully considering the factors described in
Moore, conclude that the district court did not abuse its
discretion in denying Dickey’s motion to withdraw his guilty
plea.
When conducting Dickey’s plea colloquy, the district
court substantially complied with the mandates of Rule 11, and
4
nothing in the record credibly indicates that Dickey’s plea was
not knowing and voluntary. While under oath, Dickey informed
the district court that he was not entering his plea under
threat and indicated that he had reviewed his plea agreement and
the Statement of Facts with counsel. He also acknowledged his
waiver of various trial rights and cognizance of the possible
sentences, fines, and restitution he could receive or be ordered
to pay if he chose to plead guilty. Such statements are
presumed to be true. Blackledge v. Allison, 431 U.S. 63, 74
(1977); see Fields v. Attorney Gen., 956 F.2d 1290, 1299 (4th
Cir. 1992) (“Absent clear and convincing evidence to the
contrary, a defendant is bound by the representations he makes
under oath during a plea colloquy.”). Additionally, contrary to
Dickey’s claims, our review of the record fails to reveal any
indication that his counsel endeavored to coerce him to plead
guilty. Therefore, Dickey has not provided credible evidence
that his plea was not knowing and voluntary.
We also find that Dickey has not plausibly asserted
his innocence. His vague descriptions of the information that
he claims may support his innocence are unsupported by the
record and fail to offer any indication that Dickey’s admissions
of guilt were false. Similarly, the record does not contradict
Dickey’s plea colloquy averments indicating that he was
satisfied with the assistance of his attorneys, and his claims
5
with regard to the ineffectiveness of his counsel during the
plea process remain unsubstantiated.
Moreover, Dickey delayed for almost two months from
the entering of his guilty plea before filing his motion to
withdraw his plea. Although the district court did not address
this delay when considering Dickey’s motion to withdraw his
plea, this significant period of delay militates against
allowing its withdrawal. Moore, 931 F.2d at 248. Lastly,
allowing Dickey to withdraw his guilty plea would prejudice the
government and, as the district court noted, constitute a waste
of further judicial resources. United States v. Sparks, 67 F.3d
1145, 1154 n.5 (4th Cir. 1995).
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
6