UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5210

GERMAN ALBERTO ALVAREZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-94-534-A)

Submitted: January 14, 1997

Decided: March 3, 1997

Before MURNAGHAN and WILKINS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph M. Cardona, KOORITZKY & ASSOCIATES, Arlington, Virginia, for Appellant. Helen F. Fahey, United States Attorney, John J.

Farley, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

German Alberto Alvarez pled guilty to conspiracy, in violation of

18 U.S.C. § 371 (1994); immigration fraud, in violation of 18 U.S.C.

§ 1546(a) (1994); mail fraud, in violation of 18 U.S.C. § 1341 (1994);

and income tax fraud, in violation of 26 U.S.C.§ 7206(1) (1994).

Alvarez and his mother, Nina Rancone, established a business

known as Metropolitan Immigration Services Incorporated (MISI).

MISI prepared and submitted fraudulent immigration applications to

the United States Immigration and Naturalization Service (INS) on

behalf of its clients, who paid a fee for MISI's services.

At sentencing, the Government claimed that there had been over

100 fraudulent documents involved in Alvarez's offense. Thus,

the Government argued that Alvarez's offense level should be

increased by six points pursuant to United States Sentencing Commission, Guidelines Manual § 2L2.1(b)(2)(C) (Nov. 1994). The district

court heard evidence to determine the number of fraudulent political

asylum applications involved in Alvarez's offense. The court concluded that the Government proved by a preponderance of the evidence that over 100 sets of documents were involved in the offense.

Thus, the court increased Alvarez's offense level by six points. USSG

§ 2L2.1(b)(2)(c).

Alvarez then moved to withdraw his guilty plea, claiming that he

pled guilty based on his understanding that the facts would not support a six-point enhancement. The court denied Alvarez's motion to

withdraw his guilty plea and sentenced Alvarez to thirty-three months

incarceration and three years of supervised release.

On appeal, Alvarez claims that the district court erred by: (1) denying his motion to withdraw his guilty plea; and (2) enhancing his

offense level by six points.

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Initially, we note that Alvarez waived his appellate rights in his

plea agreement. A defendant may waive his appellate rights as part

of a valid plea agreement. United States v. Wiggins, 905 F.2d 51, 53

(4th Cir. 1990). To be a valid waiver, the waiver must be knowingly

and intelligently made. United States v. Wessells, 936 F.2d 165, 167

(4th Cir. 1991). A de novo review of the materials before the court

suggests that these prerequisites were met. The plea agreement

explained each of the rights Alvarez was waiving by pleading guilty.

Acknowledging all this, Alvarez knowingly waived the right to appeal

any sentence within the maximum provided in the statutes of conviction (or the manner in which that sentence was determined) on any

ground, in exchange for the concessions made by the United States

in his plea agreement. Although a transcript of the plea hearing is

unavailable to show that the district court specifically asked Alvarez

whether he understood the significance of the waiver provision, there

is no evidence in the record or in Alvarez's argument that Alvarez

lacked an understanding of the import of the waiver provision or that

the plea hearing was in any way deficient. See United States v. Davis,

954 F.2d 182, 186 (4th Cir. 1992). Thus, Alvarez waived his right to

appeal. In any event, Alvarez's claims are meritless.

First, Alvarez claims that the district court erred by failing to grant

his motion to withdraw his guilty plea. We review a district court's

refusal to allow a defendant to withdraw a guilty plea for an abuse of

discretion. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.

1995). A defendant does not have an absolute right to withdraw a

guilty plea. United States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992).

Rather, the defendant must present a "fair and just reason" for the

withdrawal. Fed. R. Crim. P. 32(e). 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). An appropriately conducted Rule 11 proceeding, however,

raises a strong presumption that the guilty plea is final and binding.

Id.

Courts consider several factors in determining whether to permit

withdrawal of a guilty plea: (1) whether there was a delay between

the entry of the plea and the filing of the motion; (2) whether the

defendant was assisted by competent counsel; (3) whether the defendant credibly asserted his legal innocence; (4) whether the defendant

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offered credible evidence that his plea was not knowing or voluntary;

(5) whether the withdrawal would prejudice the government; and (6)

whether the withdrawal would inconvenience the court and waste

judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th

Cir. 1991). The defendant carries the burden of establishing a fair and

just reason for withdrawal, even if the government has not shown

prejudice. Lambey, 974 F.2d at 1393-94.

Using the factors as a guide, Alvarez's strongest argument is that

throughout the plea agreement process he was led to believe that a

four-point sentence enhancement would be applied to him. Alvarez

alleges that upon learning that the court would use a six-point

enhancement in calculating his sentence, he moved to withdraw his

guilty plea. A review of the evidence, however, does not support

Alvarez's claim.

Alvarez was advised of the maximum penalties he faced in his plea

agreement and was sentenced within the statutorily permissible range.

Further, Alvarez's plea agreement advised him that his sentence

would be imposed in accordance with the sentencing guidelines, the

court had jurisdiction and authority to impose any sentence within the

statutory maximum set for the offenses to which he pled guilty, and

the court had not yet determined a sentence. Alvarez also was

informed that any estimate of the probable sentencing range under the

sentencing guidelines that he may have received from his counsel, the

United States, or the probation office, was a prediction, not a promise,

and was not binding on the United States, the probation office, or the

court. Further, Alvarez was notified that the United States did not

make any promises or representations concerning what sentence he

would receive, and he could not withdraw a guilty plea based upon

the actual sentence.

After Alvarez moved to withdraw his guilty plea, he testified that

the court asked him at his plea hearing whether there were any promises or assurances other than those reflected in the plea agreement and

he stated that there were none. He further testified that when he

entered the plea agreement, it was uncertain whether he would receive

a six-point enhancement. The sentencing judge, who also conducted

Alvarez's plea hearing, further recollected that during the plea hearing, Alvarez was asked whether he understood that if the sentence he

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received was more severe than the sentence he expected he would still

be bound by his plea and he would have no right to withdraw it. The

court noted that he must have replied "yes" because the plea would

not have been accepted if Alvarez said "no." See Blackledge v.

Allison, 431 U.S. 63, 74 n.4 (1977). Alvarez has not articulated a

compelling reason why his statements at his plea hearing should be

disregarded. Id. at 75. Further, the district court was not required to

advise Alvarez about his applicable sentencing guideline range prior

to accepting his guilty plea. Puckett, 61 F.3d at 1099. A review of the

remaining Moore factors also weighs against allowing Alvarez to

withdraw his plea. Moore, 931 F.2d at 248. Thus, we find that Alvarez knowingly and voluntarily pled guilty.

Alvarez next claims that the district court erred in enhancing his

offense level by six points. Alvarez's base offense level was increased

by six points pursuant to USSG § 2L2.1(b)(2)(C), because the court

determined that more than 100 fraudulent documents were involved

in his offense. Alvarez alleges that the district court's factual findings

were clearly erroneous because the court relied on hearsay testimony

rather than requiring the Government to present affidavits from 100

or more illegal aliens indicating that their political asylum applications were fraudulent.

This court has held that a sentencing court enjoys broad discretion

in determining what information it will credit for sentencing purposes.

See United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993). A

sentencing court may properly consider even uncorroborated hearsay

that the defendant has had an opportunity to rebut or explain. Id. In

addition, factual disputes concerning adjustments under the guidelines

should be resolved by a preponderance of the evidence. United States

v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir. 1989). The standard

of review regarding factual findings by the district court during sentencing is clear error. See United States v. Turner, 59 F.3d 481, 484

(4th Cir. 1995). A preponderance of the evidence supported the district court's application of the six-point enhancement to Alvarez's

offense level, and thus, the district court did not err.

Elizabeth Goyer, a special agent of the INS, and Grace McPhearson, Alvarez's probation officer, both estimated that more than 100

fraudulent documents were involved in Alvarez's offense. Goyer's

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testimony was based upon her review of approximately 1500 political

asylum applications in various states of preparation that were found

in the office of MISI and interviews of approximately fifty aliens who

filed fraudulent applications through MISI.

The district court also found credible the testimony of the probation

officer, Grace McPhearson. McPhearson's testimony was based upon

her interview of Alvarez's mother, Rancone, during the preparation

of Alvarez's presentence report. Although Rancone's testimony at the

sentencing hearing contradicted McPhearson's testimony, the court

did not find Rancone's testimony credible. This court does not review

a trier of fact's assessment of credibility of witnesses. United States

v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Therefore, we hold that

the district court's application of the six-point enhancement was not

clearly erroneous.

Accordingly, we affirm Alvarez's conviction and sentence. 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

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