UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4383

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EDWARD DICKEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District 

Judge. (1:10-cr-00305-LO-1)

Submitted: September 26, 2011 Decided: October 11, 2011

Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Timothy D. Belevetz, Assistant 

United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Edward Dickey appeals his convictions for bank fraud, 

in violation of 18 U.S.C. § 1344(1)-(2) (2006), and aggravated 

identity theft, in violation of 18 U.S.C. § 1028A (2006). His 

sole contention on appeal is that the district court erred in 

denying his motion to withdraw his guilty plea. For the 

following reasons, we affirm.

As an initial matter, the Government suggests that 

Dickey’s appeal be dismissed as barred by the appellate waiver 

in his plea agreement. 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. 

2006). A waiver will preclude appeal of a specific issue if the 

waiver is valid and the issue is 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 this court reviews de novo. Id. at 168. 

“The validity of an appeal waiver depends on whether the 

defendant knowingly and intelligently agreed to waive the right 

to appeal.” Id. at 169. An examination of the record indicates 

that Dickey’s waiver was knowing and intelligent.

Although the Government correctly asserts the validity 

of Dickey’s appellate waiver, such a waiver does not flatly 

preclude appellate review of the district court’s denial of his 
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motion to withdraw his plea. See United States v. Attar, 38 

F.3d 727, 733 n.2 (4th Cir. 1994). 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. See id. On appeal, Dickey has persisted in his claims 

that his plea was involuntary due to the coercion of his 

counsel, that his attorneys withheld germane information from 

him during the plea process, and that they improperly refused to 

file certain motions on his behalf. These claims implicate both 

the voluntariness of Dickey’s plea and the effectiveness of his 

counsel during the plea process. Therefore, despite his failure

to produce credible evidence to support his contentions, Dickey 

has asserted the requisite “colorable” constitutional claim. 

See id. Consequently, we decline the Government’s invitation to 

dismiss the appeal.

Turning to the merits of Dickey’s appeal, the district 

court’s denial of a motion to withdraw a guilty plea is reviewed 

for abuse of discretion. United States v. Battle, 499 F.3d 315, 

319 (4th Cir. 2009). 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. 
4

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 is the case here, the 

district court substantially 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 Dickey has carried his burden, 

the 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 the 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 Dickey’s motion to withdraw his guilty 

plea.

When conducting Dickey’s plea colloquy, the district 

court substantially complied with the mandates of Rule 11, and 
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nothing in the record credibly indicates that Dickey’s plea was

not knowing and voluntary. While under oath, Dickey informed 

the district court that he was not entering his plea under 

threat and indicated that he had reviewed his plea agreement and 

the Statement of Facts with counsel. He also acknowledged his 

waiver of various trial rights and cognizance of the possible 

sentences, fines, and restitution he could receive or be ordered 

to pay if he chose to plead guilty. Such statements are 

presumed to be true. Blackledge v. Allison, 431 U.S. 63, 74 

(1977); see Fields v. Attorney Gen., 956 F.2d 1290, 1299 (4th 

Cir. 1992) (“Absent clear and convincing evidence to the 

contrary, a defendant is bound by the representations he makes 

under oath during a plea colloquy.”). Additionally, contrary to 

Dickey’s claims, our review of the record fails to reveal any 

indication that his counsel endeavored to coerce him to plead 

guilty. Therefore, Dickey has not provided credible evidence 

that his plea was not knowing and voluntary. 

We also find that Dickey has not plausibly asserted 

his innocence. His vague descriptions of the information that 

he claims may support his innocence are unsupported by the 

record and fail to offer any indication that Dickey’s admissions 

of guilt were false. Similarly, the record does not contradict 

Dickey’s plea colloquy averments indicating that he was 

satisfied with the assistance of his attorneys, and his claims 
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with regard to the ineffectiveness of his counsel during the 

plea process remain unsubstantiated. 

Moreover, Dickey delayed for almost two months from 

the entering of his guilty plea before filing his motion to 

withdraw his plea. Although the district court did not address 

this delay when considering Dickey’s motion to withdraw his 

plea, this significant period of delay militates against 

allowing its withdrawal. Moore, 931 F.2d at 248. Lastly, 

allowing Dickey to withdraw his guilty plea would prejudice the 

government and, as the district court noted, constitute a waste 

of further judicial resources. United States v. Sparks, 67 F.3d 

1145, 1154 n.5 (4th Cir. 1995). 

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal conclusions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED