UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4201

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERICK ROMAN, a/k/a Erick Javier Sierra, a/k/a Malian-T, a/k/a 

King Malian-T,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Alexander Williams, Jr., District 

Judge. (8:09-cr-00598-AW-1)

Submitted: December 1, 2011 Decided: January 5, 2012

Before WILKINSON, KING, and AGEE, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam 

opinion.

Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore, 

Maryland, for Appellant. Emily Noel Glatfelter, Assistant 

United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Erick Roman pled guilty in a Fed. R. Crim. P. 11 

hearing to one count of conspiracy to participate in a 

racketeering enterprise, in violation of 18 U.S.C. § 1962(d) 

(2006). He was sentenced to a term of 720 months in prison. In 

accordance with Anders v. California, 386 U.S. 738 (1967), 

Roman’s attorney has filed a brief certifying that there are no 

meritorious issues for appeal but questioning whether the 

district court erred in denying Roman’s motion to withdraw his 

guilty plea, whether Roman was properly classified as a career 

offender pursuant to U.S. Sentencing Guidelines Manual (“USSG”) 

§ 4B1.1 (2010), and whether Roman’s sentence constituted an 

abuse of the district court’s discretion. Roman received notice 

of his right to file a pro se supplemental brief, but has failed 

to do so. The Government has filed a motion to dismiss Roman’s 

appeal pursuant to the terms of his plea agreement’s waiver of 

appellate rights, by which Roman waives his right to appeal his 

conviction and his sentence, reserving only the right to appeal 

a term of imprisonment that exceeds life. For the following 

reasons, we dismiss in part and affirm in part. 

Pursuant to a plea agreement, a defendant may waive 

his appellate rights under 18 U.S.C. § 3742 (2006). United 

States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid 

waiver will preclude appeal of a given issue if the issue is 
3

within the scope of the waiver. United States v. Blick, 408 

F.3d 162, 168 (4th Cir. 2005). Whether a defendant validly 

waived his right to appeal is a question of law that we review

de novo. Id.

“The validity of an appeal waiver depends on whether 

the defendant knowingly and intelligently agreed to waive the 

right to appeal.” Id. at 169. This determination, often made 

based on the sufficiency of the plea colloquy and whether the 

district court questioned the defendant about the appeal waiver, 

ultimately turns on an evaluation of the totality of the 

circumstances. Id. These circumstances include all of “the 

particular facts and circumstances surrounding [the] case, 

including the background, experience, and conduct of the 

accused.” Id. (internal quotation marks omitted).

Here, a review of the record indicates that the 

district court fully complied with Rule 11 when accepting 

Roman’s plea and specifically reviewed the terms of his plea 

agreement with him, including his appellate waiver. Given no 

indication in the record to the contrary, we find that Roman’s 

waiver of appellate rights is valid and enforceable. 

Furthermore, because Roman’s 720-month sentence does not 

implicate the limited exception to his forfeiture of the right 

to appeal his sentence, we find that the sentencing issues Roman 

seeks to raise on appeal fall squarely within the compass of his 
4

appellate waiver. Accordingly, we grant the Government’s motion 

to dismiss Roman’s appeal of his sentence. 

We find, however, that Roman’s appellate waiver does 

not prevent our review of the district court’s denial of Roman’s 

motion to withdraw his guilty plea. A waiver of appeal rights

will not bar appellate review of denial of such a motion if it

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. See, e.g., United States 

v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994). Because 

Roman’s motion to withdraw was premised on such claims, we deny 

the Government’s motion to dismiss Roman’s appeal of the denial 

of his motion to withdraw his plea.

Turning to the merits of Roman’s claim, we review the 

denial of a motion to withdraw a guilty plea for abuse of 

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

Cir. 2007). In order to withdraw an otherwise valid guilty plea 

before sentencing, a defendant must show that a “fair and just 

reason” supports his request to do so. Fed. R. Crim. P. 

11(d)(2)(B); United States v. Moore, 931 F.2d 245, 248 (4th Cir. 

1991). We have defined a “fair and just” reason as one that in 

essence challenges the fairness of the Rule 11 proceeding. 

United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en 

banc). Where, as here, the district court substantially 
5

complies with the requirements of Rule 11 in accepting a 

defendant’s guilty plea, that defendant must overcome a strong 

presumption that his guilty plea is final and binding. See id. 

In determining whether the defendant has carried his burden, a

court considers 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. 

Moore, 931 F.2d at 248. We have reviewed the record in this 

case and, after carefully considering the factors described in 

Moore, conclude that the district court did not abuse its 

discretion in denying Roman’s motion to withdraw his guilty 

plea. 

In accordance with Anders, we have reviewed the record

in this case, mindful of the scope of the appellate waiver, and 

have found no meritorious issues for appeal. We therefore 

affirm Roman’s conviction and sentence. We deny counsel’s 

motion to withdraw. This court requires that counsel inform 

Roman, in writing, of his right to petition the Supreme Court of 

the United States for further review. If Roman requests that a 

petition be filed, but counsel believes that such a petition 
6

would be frivolous, counsel may renew his motion for leave to 

withdraw from representation. Counsel’s motion must state that 

a copy thereof was served on Roman. 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. 

DISMISSED IN PART

AND AFFIRMED IN PART