UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4320

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN ALEXANDER SCOTT,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, Senior District 

Judge. (1:09-cr-00581-JFM-1)

Submitted: November 20, 2012 Decided: November 30, 2012

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Raymond J. Rigat, Washington, DC, for Appellant. Rod J. 

Rosenstein, United States Attorney, Michael C. Hanlon, Assistant 

United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kevin Alexander Scott appeals his conviction following 

a guilty plea to Hobbs Act robbery, in violation of 18 U.S.C. 

§ 1951 (2006), and use of a firearm during a crime of violence, 

in violation of 18 U.S.C. § 924(c) (2006). On appeal, Scott 

argues that the district court abused its discretion in denying 

his motion to withdraw his guilty plea. We affirm. 

In his plea agreement, Scott agreed to waive the right 

to appeal his conviction and “whatever sentence is imposed,” 

reserving the right to appeal a sentence in excess of 300 

months’ imprisonment. A defendant may, in a valid plea 

agreement, waive the right to appeal under 18 U.S.C. § 3742 

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

1990). An appellate waiver must be “the result of a knowing and 

intelligent decision to forgo the right to appeal.” United 

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) 

(internal quotation marks and citation omitted). However, an 

appellate waiver in a plea agreement will not bar appellate 

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

underlying guilty plea when the motion contains a “colorable 

claim” that the plea agreement “is tainted by constitutional 

error,” such as involuntariness or the lack of the effective 

assistance of counsel. United States v. Attar, 38 F.3d 727, 733 

n.2 (4th Cir. 1994). In his motion to withdraw his guilty plea, 
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Scott argued that his plea was not knowing and voluntary because 

his trial counsel withheld germane information from him during 

the plea process. As Scott’s motion presents a “colorable” 

claim that his plea agreement was tainted by constitutional 

error, the waiver provision does not preclude an appeal of the 

denial of his motion to withdraw his guilty plea.

We review the district court’s denial of a defendant’s 

motion to withdraw his guilty plea for an abuse of discretion. 

United States v. Battle, 499 F.3d 315, 319-20 (4th Cir. 2007). 

“[A] defendant does not have an absolute right to withdraw a 

guilty plea, even before sentencing.” United States v. Moore, 

931 F.2d 245, 248 (4th Cir. 1991). To withdraw a guilty plea 

after entry of the plea but before sentencing, a defendant bears 

the burden of showing a “fair and just reason for the 

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); Moore, 931 F.2d at 

248. “[A] ‘fair and just reason’ for withdrawing a plea 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). 

In determining whether a defendant has established a 

“fair and just reason” for withdrawal, courts consider six 

factors. Moore, 931 F.2d at 248. The first, second, and fourth 

factors are the most significant, as they “speak most 

straightforwardly to the question whether the movant has a fair 
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and just reason to upset settled systemic expectations by 

withdrawing [his guilty] plea.” United States v. Sparks, 67 

F.3d 1145, 1154 (4th Cir. 1995). Further, an appropriately 

conducted Rule 11 proceeding “raise[s] a strong presumption that 

the plea is final and binding.” Lambey, 974 F.2d at 1394. 

We conclude that the district court did not abuse its 

discretion in denying Scott’s motion to withdraw his guilty 

plea. Contrary to Scott’s assertions on appeal, his trial 

counsel did not withhold germane information from him during the 

plea negotiation process, as the DNA report prepared by the 

defense’s expert witness was not available at the time Scott 

pled guilty. Moreover, although Scott places significant 

emphasis on the DNA report, the report does not establish 

Scott’s innocence. To the contrary, the report confirmed the 

findings of the Government’s expert witness. In addition, the 

trial court conducted a thorough Fed. R. Crim. P. plea colloquy 

with Scott prior to accepting his guilty plea. 

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED