UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4052

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMADE BARSON JONES, a/k/a Jamade Derson Jones,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:03-cr-00050-RLV-CH-1)

Submitted: December 15, 2010 Decided: January 21, 2011

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Reita P. Pendry, Charlotte, North Carolina, for Appellant. 

Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant 

United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jamade Barson Jones appeals from his conviction and 

162-month sentence entered pursuant to his guilty plea to 

conspiracy to possess with intent to distribute cocaine. On 

appeal, Jones asserts that the district court erred by 

(1) failing to provide individualized reasoning for his 

sentence, (2) denying his motion for a continuance, and 

(3) denying his motion to withdraw his guilty plea. The 

Government asserts that Jones’ waiver of appellate rights in his 

plea agreement bars claims (1) and (2). We affirm.

I.

It is well-settled that “a defendant may waive in a 

valid plea agreement the right of appeal under 18 U.S.C. § 3742 

[2006].” United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 

1990). “Whether a defendant has effectively waived the right to 

appeal is an issue of law that we review de novo.” United 

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). In 

undertaking that review, we will enforce an appellate waiver 

where such a waiver “is knowing and intelligent and the issue 

sought to be appealed falls within the scope of the appeal 

waiver.” United States v. Poindexter, 492 F.3d 263, 270 (4th 

Cir. 2007). An appellate waiver is generally considered to be 

knowing and intelligent where the court specifically questioned 
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the defendant regarding the waiver during the Fed. R. Crim. P. 

11 colloquy and the record indicates that the defendant 

understood the significance of the waiver. See United States v. 

Johnson, 410 F.3d 137, 151 (4th Cir. 2005). 

 Further, only a “narrow class of claims involves 

errors that the defendant ‘could not have reasonably 

contemplated’ when the plea agreement was executed,” and 

therefore are excluded from the scope of the waiver. 

Poindexter, 492 F.3d at 270. Claims that proceedings following 

the guilty plea were conducted in violation of the defendant’s 

Sixth Amendment right to counsel, see United States v. Attar, 38 

F.3d 727, 732-33 (4th Cir. 1994), or that a sentence was imposed 

in excess of the statutory maximum penalty “or based on a 

constitutionally impermissible factor such as race,” United 

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), fall within 

the category of claims excluded from an appellate waiver.

Here, the record shows that the district court 

questioned Jones regarding the appellate waiver provision at his 

Rule 11 hearing, and Jones acknowledged that he agreed with and 

understood the plea agreement. In addition, Jones signed the 

plea agreement which included an unambiguous waiver of appellate 

rights. Moreover, Jones does not dispute the contention that he 

knowingly and intelligently waived his right to appeal his 

sentence. Accordingly, we find that Jones knowingly and 
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voluntarily agreed to the appellate waiver; therefore, the 

waiver is valid and enforceable. 

Jones does not dispute that Claim (1) is barred by his 

waiver. Thus, we dismiss this claim. The parties do, however, 

disagree as to whether Jones’ claim that the district court 

improperly denied his motion to continue sentencing in order to 

find new counsel was waived by his plea agreement. As discussed 

above, claims that proceedings following the guilty plea were 

conducted in violation of the Sixth Amendment right to counsel 

are not waivable. Such is the claim raised here. Jones asserts

that the district court, in denying his motion to continue 

(which was filed after his guilty plea), violated his Sixth 

Amendment right to counsel of his own choice. See United 

States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (discussing 

right to counsel of choice). Accordingly, this claim does not 

fall within the scope of Jones’ appellate waiver and will, 

instead, be reviewed on the merits.

II.

The district court’s denial of a continuance is 

reviewed for abuse of discretion. United States v. Williams, 

445 F.3d 724, 739 (4th Cir. 2006). The trial court abuses its 

discretion when its denial of a motion for continuance is “an 

unreasoning and arbitrary insistence upon expeditiousness in the 
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face of a justifiable request for delay.” Id. In addition, 

whether to grant a motion for substitution of counsel is also 

within a court’s discretion. United States v. Corporan-Cuevas, 

35 F.3d 953, 956 (4th Cir. 1994). In evaluating whether the 

trial court abused its discretion in denying a defendant’s 

motion for substitution of counsel, we must consider: (1) the 

timeliness of the motion; (2) the adequacy of the inquiry into 

the defendant’s complaint about his attorney; and (3) whether 

the attorney/client conflict was so great that it resulted in 

total lack of communication preventing an adequate defense.

United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).

These factors are weighed against the district court’s “interest 

in the orderly administration of justice.” Id. at 157. In 

addition, a district court has wide latitude in limiting a 

defendant’s right to counsel of choice based upon fairness and 

the demands of the court’s calendar. Gonzalez-Lopez, 548 U.S. 

at 152.

Jones’ motion was untimely filed on the morning of 

sentencing. He had already replaced one attorney (and received 

continuances to accommodate) and over a year had passed since he 

was extradited. The court made an adequate inquiry into the 

basis for Jones’ motion, allowing him to explain fully the 

reasons for his dissatisfaction with his attorney and 

questioning the attorney as to why certain motions were not 
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filed. The record supports the conclusion that Jones and his 

attorney were communicating, although they disagreed about the 

best course of action to take. Moreover, Jones’ sister 

testified at the hearing that no other attorneys were interested 

in taking the case because the case had been pending for so long 

and sentencing was imminent. Because the district court’s 

ruling was not arbitrary, the court did not abuse its discretion 

in denying Jones’ motion for a continuance.

III.

We review the district court’s denial of a motion to 

withdraw a guilty plea for abuse of discretion. United 

States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). The 

defendant bears the burden of showing a “fair and just reason” 

for the withdrawal of his guilty plea. Fed. R. Crim. P. 

11(d)(2)(B). “[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). Courts consider six factors in 

determining whether to permit the withdrawal of a guilty plea:

(1) whether the defendant has offered credible 

evidence that his plea was not knowing or otherwise 

involuntary; (2) whether the defendant has credibly 

asserted his legal innocence; (3) whether there has 

been a delay between entry of the plea and filing of 

the motion; (4) whether the defendant has had close 

assistance of counsel; (5) whether withdrawal will 
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cause prejudice to the government; and (6) whether 

withdrawal will inconvenience the court and waste 

judicial resources.

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). 

An appropriately conducted Rule 11 proceeding, however, 

“raise[s] a strong presumption that the plea is final and 

binding.” Lambey, 974 F.2d at 1394.

On appeal, Jones contends that his attorney lied to 

him at the time of his plea.

*

 * At the hearing on his motion to withdraw, Jones did not 

precisely allege that his attorney lied to him. Instead, he 

asserted that he asked his attorney to move to withdraw his plea 

and the attorney refused, that his attorney was not working in 

his best interests, and that he did not receive all the 

transcripts he requested. 

 As such, he asserts that his plea was not knowing and 

voluntary. However, he presents no evidence aside from his 

self-serving and conclusory statement. In fact, Jones does not 

even explain what his attorney allegedly lied to him about or 

how it affected the voluntariness of his plea. In light of the 

magistrate judge’s undisputed full compliance with Rule 11 in 

accepting Jones’ guilty plea, Jones has not “offered credible 

evidence that his plea was not knowing or otherwise 

involuntary.” Ubakanma, 215 F.3d at 424. Moreover, Jones 

informed the magistrate judge during the plea colloquy that he 

was satisfied with his attorney and had not been threatened or 
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coerced to plead guilty, and his statements at the plea hearing 

indicated that he entered the plea knowingly and voluntarily. 

See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (conclusory 

allegations in conflict with statements at Rule 11 hearing are 

subject to summary dismissal); 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.”).

Next, Jones does not, credibly or otherwise, assert 

his legal innocence. In addition, his motion to withdraw was 

filed years after he entered his guilty plea. See United 

States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991) (finding that 

six-week delay militated against withdrawal of plea). Jones’ 

assertion that he lacked close assistance of counsel is the only 

Moore factor that might weigh in his favor; however, he has not 

shown, nor does the record reveal, that his attorney was 

incompetent. Finally, allowing Jones to withdraw his plea 

likely would have prejudiced the Government and inconvenienced 

the court due to the lengthy passage of time. We therefore 

conclude that the district court did not abuse its discretion in 

denying Jones’ motion to withdraw his guilty plea. 

Jones also asserts that he was entitled to withdraw 

his guilty plea because, at the time of his motion, the plea had 

not yet been accepted by the district court. See Fed. R. Crim. 
9

P. 11(d)(1) (a defendant may withdraw plea, for any reason or no 

reason, before the court accepts it). Specifically, Jones 

asserts that, because his plea proceeding was conducted by a 

magistrate judge, the district court was required to conduct a 

de novo review of his plea. According to Jones, because the 

district court did not conduct the required review of his 

assertion that his attorney had lied to him, the magistrate 

lacked the constitutional authority to accept his plea.

However, Jones’ guilty plea had been accepted by the 

magistrate judge following an undisputedly complete Rule 11 

inquiry as well as a clear waiver of his right to have his plea 

taken by the district court. A magistrate judge may accept 

pleas in felony cases, provided the defendant consents and as 

long as the district court exercises de novo review of the 

magistrate judge’s decision upon request. See United States v. 

Osborne, 345 F.3d 281, 289-90 (4th Cir. 2003) (holding that, 

absent request or objection, district court is not bound to 

conduct de novo review). 

Although the magistrate judge’s acceptance of Jones’ 

guilty plea was subject to de novo review, it was still properly 

entered years prior to his motion to withdraw his guilty plea. 

The fact that the magistrate judge accepted the plea subject to 

the district court’s review does not invalidate an adequate Rule 

11 proceeding by a magistrate judge, or provide a defendant with 
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the absolute right to withdraw. See United States v. Williams, 

23 F.3d 629, 634-35 (2d Cir. 1994). The court’s decision to 

disallow withdrawal remains subject to the clearly erroneous 

standard of review. Id. 

Moreover, Jones’ factual assertion that the district 

court did not conduct de novo review when it failed to consider 

his allegations is unsupported by the record. As discussed 

above, Jones never alleged in district court that his attorney 

lied to him. The district court fully considered the grounds 

for withdrawal raised by Jones and discussed the relevant 

factors. Further, Jones’ allegations had nothing to do with the 

propriety of the magistrate judge’s Rule 11 hearing. Thus, as 

Jones’ only argument in support of his assertion that the 

district court failed to conduct a de novo review is meritless, 

there are no grounds on which to disregard the magistrate 

judge’s acceptance of Jones’ plea.

Accordingly, we affirm Jones’ conviction and sentence.

This court requires that counsel inform her client, in writing, 

of his right to petition the Supreme Court of the United States 

for further review. If the client requests that a petition be 

filed, but counsel believes that such a petition would be 

frivolous, then counsel may move in this court for leave to 

withdraw from representation. Counsel’s motion must state that 

a copy thereof was served on the client. We dispense with oral 
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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