UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4138

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDWIN ARNOLDO REYES,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. Peter J. Messitte, District Judge.

(CR-01-533-PJM)

Submitted: September 27, 2004 Decided: November 9, 2004

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Bradley A. Goldbloom, SIEGEL & HYATT, LLC, Baltimore, Maryland, for

Appellant. Michael Clayton Hanlon, OFFICE OF THE UNITED STATES

ATTORNEY, Baltimore, Maryland; Deborah A. Johnston, OFFICE OF THE

UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Edwin Arnoldo Reyes appeals from his conviction and

sentence entered after he pled guilty to conspiracy to distribute

and to possess with intent to distribute five or more kilograms of

cocaine. Reyes’ attorney has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967). Although counsel states

there are no meritorious issues for appeal, he challenges the

district court’s denial of Reyes’ motion to withdraw his guilty

plea. Reyes has filed two supplemental pro se briefs, challenging

his sentence under the sentencing guidelines and under the Supreme

Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).

In accordance with Anders, we have considered the briefs and

examined the entire record for meritorious issues. Finding no

error, we affirm.

Where, as here, a defendant sought to withdraw his guilty

plea before sentencing, he must demonstrate a “fair and just

reason” for withdrawal of the plea. Fed. R. Crim. P. 11(d)(2)(B).

“A defendant has no ‘absolute right’ to withdraw a guilty plea, and

the district court has discretion to decide whether a ‘fair and

just reason’ exists upon which to grant a withdrawal.” United

States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003), cert. denied,

124 S. Ct. 1523 (2004). The district court’s denial of a motion to

withdraw a guilty plea is reviewed for abuse of discretion. United

States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).
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In determining whether a defendant has shown a “fair and

just reason” to withdraw his guilty plea, a court examines the

following 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 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.

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

most important consideration in resolving a motion to withdraw a

plea, however, is whether the Rule 11 plea colloquy was properly

conducted. Bowman, 348 F.3d at 414. A court should closely

scrutinize the Rule 11 hearing and attach 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 find that the district court did not abuse its

discretion in denying Reyes’ motion to withdraw his plea. The

transcript of the Rule 11 colloquy supports the district court’s

conclusion that Reyes knowingly and voluntarily entered his guilty

plea. The plea agreement, the counts of conviction, the possible

sentences, and the factual basis were exhaustively explained to

Reyes, and he testified under oath that he understood. Further,
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the district court explicitly found that Reyes’ testimony at the

motion to withdraw hearing was not credible, and such a finding is

not reviewable on appeal. See United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997).

Regarding the other factors, Reyes did not contest his

guilt; he merely argued for a different sentence. Next, Reyes’

guilty plea came on the eve of trial, and his motion to withdraw

was filed five months later. Based on this delay, the district

court found that the Government would be prejudiced if it had to

again marshall witnesses for a trial. The court also found that

Reyes’ complaints regarding his attorney were not credible. Thus,

each of the factors weighed against withdrawal of the plea, and the

district court did not abuse its discretion by denying Reyes’

motion.

In his plea agreement, Reyes waived the right to

challenge the guideline calculation at sentencing (except for

criminal history) and on appeal (except for upward or downward

departures). The Government and Reyes agreed to certain

enhancements and adjustments and determined that no other

adjustments would be made. Although no upward or downward

departures were made at sentencing, Reyes seeks to appeal the

calculation of his sentence on numerous grounds. 

A criminal defendant may waive his statutory right to

direct appeal as part of a plea agreement with the Government.
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United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). For a

waiver to be effective, the plea agreement must be entered into

knowingly and voluntarily, and the district court must specifically

inquire as to the Defendant’s knowledge of the waiver provision.

Id. As discussed above, the plea agreement was knowingly and

voluntarily entered into, and Reyes’ testimony to the contrary was

found not credible. In addition, the Rule 11 hearing transcript

shows that the court apprised Reyes of the appellate waiver

provision. Accordingly, Reyes’ waiver is valid and enforceable and

bars his attempts to challenge the calculation of his sentence

under the sentencing guidelines.

Finally, Reyes challenges his sentence under Blakely.

Because we recently decided that Blakely did not invalidate a

sentence imposed within the federal guidelines, we find that any

Blakely claim is without merit. See United States v. Hammoud, __

F.3d __, 2004 WL 2005622 (4th Cir. Sept. 8, 2004), petition for

cert. filed (U.S. Aug. 6, 2004) (No. 04-193).

Accordingly, we grant Reyes’ motion to supplement and

affirm his conviction and sentence. This court requires that

counsel inform his 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, counsel may move in this court

to withdraw from representation at that time. Counsel’s motion
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must state that a copy thereof was served on Reyes. 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