UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-4721

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID DEVONNE BATTISTE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (4:14-cr-00058-H-1)

Submitted: September 27, 2018 Decided: October 3, 2018

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Brian Michael Aus, Durham, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David Devonne Battiste pled guilty, pursuant to a written plea agreement, to

carjacking, in violation of

(1) (2012), and discharging a firearm in

furtherance of a crime of violence (carjacking), in violation of

(c)(1)(A)(iii) (2012). The district court sentenced Battiste as a career offender to

324 months’ imprisonment. On appeal, Battiste challenges his career offender

designation, his § 924(c) conviction, and the district court’s denial of his motion to

withdraw his guilty plea. The Government has moved to dismiss Battiste’s appeal based

on the appellate waiver in his plea agreement. We affirm in part and dismiss in part.

We will enforce a defendant’s waiver of his right to appeal his conviction and

sentence if the waiver “is valid and the issue appealed is within the scope of the waiver.”

United States v. Copeland,

(4th Cir. 2013) (internal quotation marks

omitted). “We review the validity of an appeal waiver de novo,” considering “the totality

of the circumstances.”

(internal quotation marks omitted). A valid waiver is one that

is “knowing and voluntary.” United States v. Tate,

, 574 n.1 (4th Cir. 2017).

“Generally, if a district court questions a defendant regarding the waiver of appellate

rights during the Rule 11 colloquy and the record indicates that the defendant understood

the full significance of the waiver, the waiver is valid.”

(internal quotation marks

omitted).

Battiste does not challenge the validity of the waiver. Moreover, upon review of

the plea agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that

the appeal waiver in Battiste’s plea agreement is valid, as he entered it knowingly and

2 voluntarily. See Tate,

n.1. Thus, the waiver is enforceable as to issues

within its scope.

Battiste contests the district court’s denial of his motion to withdraw his guilty

plea. Although Battiste agreed to waive the right to appeal his convictions in his plea

agreement, a defendant cannot waive a colorable claim that his plea was not knowing and

voluntary. See, e.g., United States v. Attar,

, 732-33 & n.2 (4th Cir. 1994).

Accordingly, Battiste’s appeal waiver does not foreclose our review of the validity of his

guilty plea.

We review the denial of a motion to withdraw a guilty plea for abuse of discretion.

United States v. Nicholson,

(4th Cir. 2012). To withdraw a guilty plea

before sentencing, a defendant must “show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “The defendant bears the burden of

demonstrating that withdrawal should be granted.” United States v. Thompson-Riviere,

(4th Cir. 2009) (brackets and internal quotation marks omitted). When

the district court substantially complies with the Rule 11 requirements, the defendant

must overcome a strong presumption that his guilty plea is final and binding. United

States v. Lambey,

(4th Cir. 1992) (en banc). In deciding a motion to

withdraw a guilty plea, courts consider the following non-exhaustive list of 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 to withdraw the plea; (4) whether the defendant had the close assistance of competent counsel; (5) whether withdrawal will cause prejudice to the government; and

3 (6) whether [withdrawal] will inconvenience the court and waste judicial resources.

Nicholson,

(citing United States v. Moore,

(4th Cir.

1991)).

The district court conducted a comprehensive Rule 11 hearing prior to accepting

Battiste’s guilty plea and Battiste fails to overcome the strong presumption that his guilty

plea is final and binding. See Lambey,

. Battiste also makes no credible

assertion of legal innocence, and waited almost six months to move to withdraw his plea.

Further, he swore under oath that he was satisfied with counsel’s representation at the

plea hearing and, beyond his bare assertions, Battiste fails to point to any evidence of

ineffectiveness. See Christian v. Ballard,

(4th Cir. 2015) (“Solemn

declarations in open court carry a strong presumption of verity . . . .” (alteration and

internal quotation marks omitted)). Accordingly, we conclude that the district court did

not abuse its discretion in denying Battiste’s motion to withdraw his guilty plea, and we

affirm as to this claim.

Battiste waived the right to appeal his convictions and sentence, including any

sentence below or within the advisory Sentencing Guidelines range established at

sentencing. Accordingly, his challenge to his career offender designation falls within the

scope of his appeal waiver, and we grant the Government’s motion to dismiss as to this

claim. See United States v. Brown,

(4th Cir. 2000) (holding incorrect

application of career offender enhancement did not fall outside the scope of valid appeal

waiver).

4 Battiste next claims that he is innocent of his § 924(c) conviction because

carjacking does not constitute a crime of violence. “We will refuse to enforce an

otherwise valid waiver if to do so would result in a miscarriage of justice.” United

States v. Adams,

(4th Cir. 2016). “A proper showing of actual

innocence is sufficient to satisfy the miscarriage of justice requirement,” thereby

rendering the claim outside the scope of the waiver.

(internal quotation marks

omitted). Battiste has not made a cognizable showing of actual innocence, as his

challenge to his § 924(c) conviction is directly foreclosed by United States v. Evans,

(4th Cir.) (holding that carjacking is crime of violence under § 924(c)’s force

clause), cert. denied,

(2017). Thus, Battiste’s § 924(c) claim falls within

the scope of the appellate waiver and we grant the Government’s motion to dismiss as to

this claim as well.

Accordingly, we affirm the district court’s denial of Battiste’s motion to withdraw

his guilty plea and grant the Government’s motion to dismiss as to the remainder of the

appeal. 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 IN PART, DISMISSED IN PART

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