UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4686

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS MARSHALL BYRD,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., Chief District Judge. (1:11-cr-00203-WO-1)

Submitted: August 29, 2014 Decided: September 9, 2014

Before NIEMEYER and GREGORY, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Ferris R. Bond, BOND & NORMAN, Washington, D.C., for Appellant. 

Ripley Rand, United States Attorney, Randall Galyon, Assistant 

United States Attorney, Rebecca Fitzpatrick, Special Assistant 

United States Attorney, Greensboro, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Thomas Marshall Byrd pled guilty pursuant to a written 

plea agreement to conspiracy to distribute cocaine base, 21 

U.S.C. § 846 (2012) (object one of Count One), and possession of 

a firearm in furtherance of a drug trafficking crime, 18 U.S.C. 

§ 924(c)(1)(A)(i) (2012) (Count Five). He was initially 

sentenced to 322 months’ imprisonment, which included a fiveyear consecutive mandatory sentence on the firearm conviction. 

On appeal, this court granted the parties’ joint motion to 

remand in light of Dorsey v. United States, 132 S. Ct. 2321, 

2328-29 (2012) (holding that a defendant sentenced after the 

effective date of the Fair Sentencing Act (“FSA”) for an offense 

committed before the FSA’s effective date should be sentenced 

pursuant to the FSA). 

At resentencing, Byrd challenged the use of two of his 

convictions as predicate offenses for the career offender 

enhancement; the use of a revised drug quantity stipulation;1 and 

 1 In his plea agreement, Byrd stipulated to five kilograms 

or more of cocaine base as it pertained to object one of Count 

One. At the Fed. R. Crim. P. 11 hearing, the district court 

asked Byrd—and Byrd confirmed—that the substance involved in 

object one of Count One was in fact five kilograms of cocaine 

base. In the PSR, however, the probation officer corrected the 

stipulated drug quantity to 280 grams of crack cocaine, 

explaining that “the government has indicated that the 5 

kilogram amount was a mistake and that 280 grams of cocaine base 

is the correct amount.” Thereafter, at sentencing, the district 

court ensured that Byrd understood the ramifications of pleading 

(Continued)
3

the validity of his guilty plea on Count Five. The court denied 

the objections to the PSR, and after construing Byrd’s challenge 

to his guilty plea on Count Five as a motion to withdraw his 

guilty plea, denied the motion. The court imposed a downward 

variance sentence of 180 months on Count One and a sixty-month 

consecutive term on Count Five for a total of 240 months’ 

imprisonment. 

On appeal, Byrd asserts that the district court abused 

its discretion by denying his motion to withdraw his guilty plea 

as to Count Five on the grounds that (1) the court did not 

inquire as to whether he understood that he could be deemed a 

career offender leading to a more severe Guidelines range; (2) 

his plea was not entered knowingly and voluntarily because he 

mistakenly stipulated to having distributed five kilograms of 

cocaine base; and (3) he reasonably believed the Government had 

agreed not to use his conviction when he was seventeen years old 

to designate him a career offender and enhance his sentence. 

Second, he disputes his career offender designation. Third, he 

challenges the substantive reasonableness of his sentence. 

Last, he requests he be relieved of the appellate waiver in his 

plea agreement because his “unreasonable sentence resulted in a 

 

to the revised amount. Byrd stated he wished to plead guilty to 

the lower, more favorable, quantity. 
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miscarriage of justice.” We affirm in part, and because we will 

enforce the appeal waiver as to Byrd’s sentence, dismiss in 

part.

This court reviews a district court’s denial of a 

motion to withdraw a guilty plea for abuse of discretion. 

United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). 

“A defendant has no absolute right to withdraw a guilty plea[.]” 

Id. at 383-84 (internal quotation marks omitted). Instead, the 

defendant bears the burden of “show[ing] a fair and just reason” 

for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B); 

Nicholson, 676 F.3d at 383.

This court has outlined six factors that the district 

court should evaluate to determine whether a defendant is 

entitled to withdraw his guilty plea:

(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). 

While all the factors noted in Moore should be considered, the 

key factor to determining whether a motion to withdraw should be 
5

granted is whether the Rule 11 hearing was properly conducted. 

Nicholson, 676 F.3d at 384.

As noted by the Government on appeal, Byrd rests on 

only one Moore factor, i.e., that his plea was not knowing and 

voluntary.2 Byrd claims that, because he was never informed by 

the court during his plea hearing that he may qualify as a 

career offender and therefore face a lengthier sentence, his 

plea was not knowing and voluntary. Although, admittedly, Rule 

11 requires a district court to notify a defendant during the 

plea colloquy of all potentially applicable statutory minimum 

and maximum sentences, it “does not require courts to inform 

defendants of the applicable Guidelines sentencing ranges[.]” 

United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008).

Next, Byrd argues his plea was not knowing and 

voluntary because the plea agreement and plea colloquy referred 

to an incorrect stipulated drug quantity as to Count One. Byrd 

argues that the stipulation as to drug quantity on Count One 

affected the involuntariness of his conviction on Count Five 

regarding the firearm. He asserts that such confusion is 

 2 Although Byrd agreed to waive his right to appeal his 

convictions in his plea agreement, a defendant’s waiver of 

appellate rights cannot foreclose a colorable constitutional 

challenge to the voluntariness of the guilty plea. See, e.g., 

United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 

1994). 
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evidence that his plea was not knowing and voluntary. The 

district court discussed at length the ramifications of altering 

the stipulated amount and ensured that Byrd understood the 

change-a change that was of great advantage to Byrd-and that the 

revised stipulation was knowing and voluntary. We therefore 

reject this argument. 

Last, Byrd argues his plea was not knowing and 

voluntary because he reasonably believed the Government’s 

promise not to file an Information of Prior Conviction meant 

that the conviction would not be used to designate him a career 

offender. In light of Byrd’s statements under oath, which are 

entitled to “a strong presumption of verity,” Blackledge v. 

Allison, 431 U.S. 63, 74 (1977), Byrd’s misapprehension is 

belied by the record. Byrd stated during the Rule 11 hearing 

that he understood that his Guidelines range would be calculated 

after the preparation of the presentence report. We conclude 

the district court did not abuse its discretion in determining 

that Byrd failed to establish a “fair and just reason” to 

support his request to withdraw his guilty plea. 

Byrd’s challenges to his sentence are foreclosed by 

his appeal waiver. In his plea agreement, Byrd agreed to waive 

his right to appeal “whatever sentence is imposed on any 

ground.” We review the validity of an appellate waiver de novo. 

United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert. 
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denied, 134 S. Ct. 126 (2013). Where the Government seeks to 

enforce an appeal waiver, this court will enforce the waiver if 

it was knowing and intelligent and the issues raised on appeal 

fall within its scope. United States v. Davis, 689 F.3d 349, 

354–55 (4th Cir. 2012); see United States v. General, 278 F.3d 

389, 400 (4th Cir. 2002) (stating that, in determining whether 

appeal waiver is knowing and intelligent, court examines 

“totality of the circumstances”). Generally, if the district 

court fully questions a defendant regarding the waiver of his 

right to appeal during the Rule 11 colloquy and a review of the 

record reveals that the defendant understood the full import of 

the waiver, the waiver is both valid and enforceable. Copeland, 

707 F.3d at 528.

Based on the totality of the circumstances, we 

conclude that Byrd knowingly and voluntarily waived his right to 

appeal his sentence on the grounds raised on appeal and, at the 

Government’s urging, we will enforce the waiver. Thus, we 

dismiss the appeal from that part of the judgment imposing 

sentence.

Accordingly, we affirm in part and dismiss in part. 

We dispense with oral argument because the facts and legal
8

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED IN PART;

DISMISSED IN PART