The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4955
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLTON BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(CR-03-0538)
Submitted: October 21, 2005 Decided: November 16, 2005
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Warren E. Gorman, Chevy Chase, Maryland, for Appellant. Allen F.
Loucks, United States Attorney, Deborah A. Johnston, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carlton Brown appeals from his conviction and 262-month
sentence entered pursuant to his guilty plea to conspiracy to
distribute crack cocaine. On appeal, he challenges the district
court’s denial of his motion to withdraw his guilty plea. He also
attempts to raise claims under Blakely v. Washington, 542 U.S. 296
(2005). We affirm Brown’s conviction and dismiss his appeal of his
sentence, as he waived the right to challenge his sentence in his
plea agreement.
The district court’s denial of a motion to withdraw a
guilty plea is reviewed for abuse of discretion. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). 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). Rather, the defendant bears the burden of demonstrating
that a “fair and just reason” supports his request to withdraw his
plea. Id. The central question is whether the Fed. R. Crim. P. 11
hearing was properly conducted. United States v. Puckett, 61 F.3d
1092, 1099 (4th Cir. 1995). This court closely scrutinizes the
Rule 11 colloquy and attaches a strong presumption that the plea is
final and binding if the Rule 11 proceeding is adequate. United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
We hold that the district court did not abuse its
discretion in denying Brown’s motion to withdraw his guilty plea.
- 2 -
The record clearly reveals that Brown voluntarily chose to plead
guilty and that he understood the consequences of doing so. While
Brown relies on the fact that Blakely had not issued at the time of
his plea, a post-plea change in the law regarding applicable
sentences does not provide a valid basis for withdrawing from an
otherwise valid plea. See United States v. Johnson, 410 F.3d 137,
152-53 (4th Cir.), cert. denied, 2005 WL 2494147 (U.S. Oct. 11,
2005) (No. 05-6215). Thus, we hold that the district court did not
abuse its discretion in denying Brown’s motion to withdraw his
guilty plea.
Turning to Brown’s challenges to his sentence, Brown
waived the right to appeal his sentence in his plea agreement,
reserving only the right to appeal from an upward or downward
departure. A defendant may, in a valid plea agreement, waive the
right to appeal. United States v. Wiggins, 905 F.2d 51, 53 (4th
Cir. 1990). Whether a defendant has effectively waived the right
to appeal is an issue of law we review de novo. United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992). An appeal waiver is
valid if the defendant knowingly and intelligently agreed to waive
his right to appeal. United States v. Blick, 408 F.3d 162, 168-69
(4th Cir. 2005).
Our review of the record reveals that the district court
conducted an adequate Rule 11 plea colloquy. The court questioned
Brown regarding the appeal waiver, and he stated that he
- 3 -
understood. Brown presents no basis to suggest that the appeal
waiver was not knowingly and intelligently made. Moreover, the
subsequent issuance of Blakely and its progeny does not invalidate
an otherwise valid waiver. Id. at 173 (upholding waiver, because
Blick was sentenced under the guidelines, in accordance with his
agreement and his expectations). Accordingly, Brown’s attempts to
challenge his sentence on appeal are foreclosed by the waiver
provisions in his plea agreement.
Based on the foregoing, we affirm Brown’s conviction. We
dismiss his appeal from his sentence based on his waiver. 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
- 4 -