UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4574

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JOHN CURTIS EWELL, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Newport News. Walter Dekalb Kelley, 

Jr., District Judge. (4:07-cr-00069-WDK-FBS-2) 

Submitted: March 23, 2009 Decided: April 23, 2009 

Before KING, DUNCAN, and AGEE, Circuit Judges. 

Affirmed in part; dismissed in part by unpublished per curiam 

opinion. 

Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY, 

Charlottesville, Virginia, for Appellant. Dana J. Boente, 

Acting United States Attorney, Richard Cooke, Scott W. Putney, 

Assistant United States Attorneys, Cameron Rountree, Third Year 

Law Student, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 John Curtis Ewell appeals his conviction and 420-month 

sentence for conspiracy to distribute fifty grams or more of 

cocaine base, five hundred grams or more of cocaine, and heroin, 

in violation of 21 U.S.C. § 841(a)(1) (2006), and use of a 

firearm in furtherance of a drug trafficking crime, in violation 

of 18 U.S.C. § 924(c)(1) (2006). Ewell argues on appeal that 

the district court erred in denying his motion to withdraw his 

guilty plea, in finding that he breached his plea agreement, and 

in overruling his objections to the court’s advisory sentencing 

guidelines calculations. We affirm his conviction and dismiss 

his appeal of his sentence. 

I. Guilty Plea 

 “A defendant has no absolute right to withdraw a 

guilty plea.” United States v. Bowman, 348 F.3d 408, 413 (4th 

Cir. 2003) (internal citation and quotation marks omitted). 

Once the district court has accepted a defendant’s guilty plea, 

it is within the court’s discretion whether to grant a motion to 

withdraw it. United States v. Battle, 499 F.3d 315, 319 (4th 

Cir. 2007). The defendant bears the burden of showing a “fair 

and just reason” for withdrawing 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 

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proceeding.” United States v. Lambey, 974 F.2d 1389, 1394 (4th 

Cir. 1992) (en banc). 

 In deciding whether to permit a defendant to withdraw 

his guilty plea, a district court considers: 

(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 

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) 

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

1991)) (footnote omitted). 

 However, an appropriately conducted Rule 11 proceeding 

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

binding.” Lambey, 974 F.2d at 1394; see also United States v. 

Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). Under Rule 

11(b)(1), the district court must address the defendant in open 

court and inform him of the following: the nature of the charge; 

any mandatory minimum sentence and the maximum possible 

sentence; the applicability of the Sentencing Guidelines; the 

court’s obligation to impose a special assessment; the 

defendant’s right to an attorney; his right to plead not guilty 

and be tried by a jury with the assistance of counsel; his right 

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to confront and cross-examine witnesses; his right against selfincrimination; and his right to testify, present evidence, and 

compel the attendance of witnesses. The defendant also must be 

told that a guilty plea waives any further trial and that his 

answers at the proceeding may be used against him in a 

prosecution for perjury. Under Rule 11(b)(2), the court must 

address the defendant to determine that the plea is voluntary. 

The court must require disclosure of any plea agreement under 

Rule 11(c)(2) and determine a factual basis for the plea under 

Rule 11(b)(3). 

 For the first time on appeal, Ewell argues that his 

plea was not knowing and voluntary because he was under the 

influence of medication for his bipolar disorder. This claim is 

not properly before this court because it was not presented to 

the district court when Ewell moved to withdraw his plea. 

Before the district court, Ewell argued only that he was 

innocent of some of the charged conduct to which he pled guilty 

and was misled into accepting the plea agreement by counsel who 

represented him at the time. Ewell’s alleged mistaken 

impression regarding what conduct would ultimately determine his 

sentencing guidelines range did not constitute a fair and just 

reason for withdrawal of his plea, in light of his assertions at 

the plea hearing that he understood his ultimate sentence would 

be based in part upon the guidelines calculations and his assent 

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to the truth of the statement of facts attached to the plea 

agreement he signed. Ewell did not present any testimony from 

his former counsel, or evidence other than his own testimony, at 

the hearing on his motion to withdraw to corroborate his alleged 

misunderstanding or his claims of ineffective assistance of 

counsel. The district court did not abuse its discretion in 

finding that Ewell did not credibly assert his innocence and 

that his motion to withdraw his plea after a four-month delay 

appeared to be based upon his disappointment with the 

imprisonment range he faced under the guidelines. 

II. Breach of Plea Agreement 

 This court reviews “a claim that a party has breached 

a plea agreement under a bifurcated standard, reviewing the 

district court’s factual findings for clear error, while 

reviewing the district court’s application of principles of 

contract interpretation de novo.” United States v. Bowe, 257 

F.3d 336, 342 (4th Cir. 2001) (citation omitted). 

 The district court did not err in finding that Ewell 

repudiated the statement of facts attached to the plea 

agreement, and claimed he was not actually guilty of the 

offenses he pled guilty to, and that these actions constituted a 

breach of his plea agreement with the Government. As discussed 

with respect to Ewell’s motion to withdraw his guilty plea, the 

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district court’s finding that his motion to withdraw his guilty 

plea was not simply an attempt to correct a previous 

misunderstanding caused by counsel is not clearly erroneous. 

III. Appeal Waiver 

 In his plea agreement, Ewell waived his right to 

appeal any sentence below the statutory maximum. This court 

reviews the validity of a waiver de novo, and will uphold a 

waiver of appellate rights if the waiver is valid and the issue 

being appealed is covered by the waiver. United States v. 

Blick, 408 F.3d 162, 168 (4th Cir. 2005). Ewell does not 

contest the validity of his waiver, beyond his argument that the 

district court erroneously denied his motion to withdraw his 

guilty plea. The issues Ewell raises on appeal regarding his 

sentence are covered by the waiver because the sentence imposed 

was below the statutory maximum. 

 For the reasons stated above, we affirm Ewell’s 

conviction and the district court’s finding that he breached his 

plea agreement, and dismiss his appeal of his 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 IN PART;

DISMISSED IN PART