**UN PUBLISHED** 
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
.

Appe al 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 Judge s.
Dismissed in part and affirmed in part by un published 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Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Erick Roman pled guilty in a Fed.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 c ourt erred in denying Roman’s motion to withdraw his guilty plea, whether Roman was properly classified as a c areer

o ffender pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2010), and whether Roman’s sentence constituted an abuse of the dis trict 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 right s , by which Roman waives his right to appeal his conviction and his sentence, reserving only the right to appeal
a te rm 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 is3 within the scope of the waiver. United States v. B lick , 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 waiv e 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 cir cumstances. 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 in dicates that the district court ful ly 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 Rom an’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 rai se on appeal fall squarely within the compass of his4 appellate waiver. Accordingly, we grant the Government’s motion to dismiss Roman ’s appeal of his sentence. We find , h owever, that Roman’s appellate waiver does not prevent our review of the district c ourt’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 involu ntariness or the lack of the e ffective 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 pre mised 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 , 31 9 (4th Cir. 200 7 ). In order t o 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 “fa ir 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 substantially5 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 de fendant 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 r ecord 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 theref ore affirm Roman’s conviction and sentence

. We deny counsel’s motion to withdraw. This c ourt req uires that counsel inform
Roman , in wr iting, of his right to petition the Supreme Court of the Un ited States for further review. If Roman requests that a petition be filed, but counsel believes that such a petition6 would be frivolous, counsel may renew his motion for leave to withdraw from re presentation. 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 present ed in the materials before the c ourt and argument would not aid the decisional process.

DISMISSED IN PART AND AFFIRMED IN PART