United States v. Curry , 165 F. App'x 277 ( 2006 )


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  •                             UNPUBLISHED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    Affirmed in part; dismissed in part by unpublished per curiam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    Unpublished opinions are not binding precedent in this circuit.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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