Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 09-4052
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
JAMADE BARSON JONES, a/k/a Jamade Derson Jones,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:03-cr-00050-RLV-CH-1)
Submitted:
December 15, 2010
Decided:
January 21, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reita P. Pendry, Charlotte, North Carolina, for Appellant.

Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamade Barson Jones appeals from his conviction and
162-month
sentence
entered
pursuant
to
his
guilty
plea
to
conspiracy to possess with intent to distribute cocaine.
On
appeal,
erred
by
for
his
continuance,
and
Jones
(1) failing
sentence,
asserts
to
(2)
(3) denying
that
provide
denying
his
motion
the
district
individualized
his
motion
to
withdraw
for
his
court
reasoning
a
guilty
plea.
The
Government asserts that Jones waiver of appellate rights in his

plea agreement bars claims (1) and (2).
We affirm.
I.
It is well-settled that a defendant may waive in a
valid plea agreement the right of appeal under 18 U.S.C. 3742
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
[2006].
1990).
Whether a defendant has effectively waived the right to
appeal is an issue of law that we review de novo.

States
v.
Blick,
408
F.3d
162,
168
(4th
Cir.
United
2005).
In
undertaking that review, we will enforce an appellate waiver

where such a waiver is knowing and intelligent and the issue
sought
to
waiver.
be
appealed
falls
within
the
scope
of
the
appeal
United States v. Poindexter, 492 F.3d 263, 270 (4th
Cir. 2007).
An appellate waiver is generally considered to be
knowing and intelligent where the court specifically questioned

2
the defendant regarding the waiver during the Fed. R. Crim. P.

11
colloquy
and
the
record
indicates
that
understood the significance of the waiver.
the
defendant
See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

Further,
errors
that
contemplated
therefore
only
narrow
class
the
defendant
could
when
the
agreement
are
excluded
plea
from
Poindexter, 492 F.3d at 270.
the
of
not
claims
have
was
scope
involves
reasonably
executed,
of
the
and
waiver.
Claims that proceedings following
the guilty plea were conducted in violation of the defendants

Sixth Amendment right to counsel, see United States v. Attar, 38
F.3d 727, 732-33 (4th Cir. 1994), or that a sentence was imposed
in
excess
of
the
constitutionally
statutory
maximum
impermissible
penalty
factor
such
or
as
based
race,
on
United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), fall within
the category of claims excluded from an appellate waiver.
Here,
the
record
shows
that
the
district
court
questioned Jones regarding the appellate waiver provision at his

Rule 11 hearing, and Jones acknowledged that he agreed with and
understood the plea agreement.
In addition, Jones signed the
plea agreement which included an unambiguous waiver of appellate

rights.
knowingly
sentence.
Moreover, Jones does not dispute the contention that he

and
intelligently
Accordingly,
we
waived
his
right
find
that
Jones
to
appeal
his
knowingly
and
voluntarily
agreed
to
the
appellate
waiver;
therefore,
the
waiver is valid and enforceable.

Jones does not dispute that Claim (1) is barred by his
waiver.
Thus, we dismiss this claim.
The parties do, however,
disagree
as
that
to
whether
Jones
claim
the
district
court
improperly denied his motion to continue sentencing in order to

find new counsel was waived by his plea agreement.
As discussed
above, claims that proceedings following the guilty plea were

conducted in violation of the Sixth Amendment right to counsel
are not waivable.
that
the
(which
district
was
Amendment
Such is the claim raised here.
filed
right
court,
after
to
in
his
denying
guilty
counsel
of
his
motion
plea),
his
own
Jones asserts
to
violated
choice.
continue
his
See
Sixth
United
States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (discussing

right to counsel of choice).
fall
within
the
scope
of
Accordingly, this claim does not
Jones
appellate
waiver
and
will,
instead, be reviewed on the merits.
II.
The
district
courts
denial
of
continuance
is
reviewed for abuse of discretion.
United States v. Williams,
445 F.3d 724, 739 (4th Cir. 2006).
The trial court abuses its
discretion when its denial of a motion for continuance is an

unreasoning and arbitrary insistence upon expeditiousness in the
4
face of a justifiable request for delay.
Id.
In addition,
whether to grant a motion for substitution of counsel is also

within a courts discretion.
United States v. Corporan-Cuevas,
35 F.3d 953, 956 (4th Cir. 1994).
In evaluating whether the
trial
in
court
abused
its
discretion
denying
defendants
motion for substitution of counsel, we must consider: (1) the

timeliness of the motion; (2) the adequacy of the inquiry into
the defendants complaint about his attorney; and (3) whether
the attorney/client conflict was so great that it resulted in
total
lack
of
communication
preventing
an
adequate
defense.
United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).
These factors are weighed against the district courts interest
in the orderly administration of justice.
addition,
district
court
has
wide
Id. at 157.
latitude
in
In
limiting
defendants right to counsel of choice based upon fairness and

the demands of the courts calendar.
Gonzalez-Lopez, 548 U.S.
at 152.
Jones motion was untimely filed on the morning of
sentencing.
He had already replaced one attorney (and received
continuances to accommodate) and over a year had passed since he

was extradited.
basis
for
reasons
Jones
for
questioning
The court made an adequate inquiry into the
his
the
motion,
allowing
dissatisfaction
attorney
as
to
5
why
him
to
with
explain
his
certain
fully
attorney
motions
were
the
and
not
filed.
The record supports the conclusion that Jones and his
attorney were communicating, although they disagreed about the

best
course
of
action
to
take.
Moreover,
Jones
sister
testified at the hearing that no other attorneys were interested

in taking the case because the case had been pending for so long
and
sentencing
was
imminent.
Because
the
district
courts
ruling was not arbitrary, the court did not abuse its discretion
in denying Jones motion for a continuance.
III.
We review the district courts denial of a motion to
withdraw
States v.
guilty
Dyess,
plea
478
for
F.3d
abuse
224,
of
237
discretion.
(4th
Cir.
United
2007).
The
defendant bears the burden of showing a fair and just reason

for
the
withdrawal
11(d)(2)(B).
essentially
(4th
his
guilty
plea.
Fed.
R.
Crim.
P.
[A] fair and just reason . . . is one that

challenges
proceeding . . . .
1394
of
Cir.
the
fairness
of
the
Rule
11
United States v. Lambey, 974 F.2d 1389,
1992).
Courts
consider
six
factors
determining whether to permit the withdrawal of a guilty plea:

(1)
whether
the
defendant
has
offered
credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether withdrawal will
6
in
cause prejudice to the government; and (6) whether

withdrawal will inconvenience the court and waste
judicial resources.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
An
appropriately
conducted
strong
Rule
raise[s]
presumption
binding.
Lambey, 974 F.2d at 1394.
11
that
proceeding,
the
plea
is
however,
final
and
On appeal, Jones contends that his attorney lied to

him
*
at
As
the
such,
voluntary.
he
time
asserts
However,
he
that
of
his
presents
plea
no
self-serving and conclusory statement.
his
was
not
evidence
plea.
knowing
aside
from
and
his
In fact, Jones does not
even explain what his attorney allegedly lied to him about or

how it affected the voluntariness of his plea.
In light of the
magistrate judges undisputed full compliance with Rule 11 in

accepting Jones guilty plea, Jones has not offered credible
evidence
that
involuntary.
his
plea
Ubakanma,
was
215
not
F.3d
at
knowing
424.
or
otherwise
Moreover,
Jones
informed the magistrate judge during the plea colloquy that he

was satisfied with his attorney and had not been threatened or
At the hearing on his motion to withdraw, Jones did not

precisely allege that his attorney lied to him.
Instead, he
asserted that he asked his attorney to move to withdraw his plea
and the attorney refused, that his attorney was not working in
his best interests, and that he did not receive all the
transcripts he requested.
coerced to plead guilty, and his statements at the plea hearing

indicated that he entered the plea knowingly and voluntarily.
See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (conclusory
allegations in conflict with statements at Rule 11 hearing are
subject to summary dismissal); Fields v. Attorney Gen., 956 F.2d
1290,
1299
evidence
to
(4th
the
Cir.
1992)
contrary,
(Absent
a
clear
defendant
and
is
convincing
bound
by
the
representations he makes under oath during a plea colloquy.).

Next, Jones does not, credibly or otherwise, assert
his legal innocence.
filed
years
after
In addition, his motion to withdraw was
he
entered
his
guilty
plea.
See
United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991) (finding that
six-week delay militated against withdrawal of plea).
Jones
assertion that he lacked close assistance of counsel is the only

Moore factor that might weigh in his favor; however, he has not
shown,
nor
incompetent.
does
the
Finally,
record
reveal,
allowing
Jones
that
to
his
attorney
withdraw
his
was
plea
likely would have prejudiced the Government and inconvenienced

the court due to the lengthy passage of time.
We therefore
conclude that the district court did not abuse its discretion in
denying Jones motion to withdraw his guilty plea.
Jones also asserts that he was entitled to withdraw
his guilty plea because, at the time of his motion, the plea had
not yet been accepted by the district court.
8
See Fed. R. Crim.
P. 11(d)(1) (a defendant may withdraw plea, for any reason or no

reason,
before
the
court
accepts
it).
Specifically,
Jones
asserts that, because his plea proceeding was conducted by a

magistrate judge, the district court was required to conduct a
de novo review of his plea.
district
court
did
assertion
that
his
not
According to Jones, because the
conduct
attorney
the
had
lied
required
to
him,
review
the
of
his
magistrate
lacked the constitutional authority to accept his plea.

However, Jones guilty plea had been accepted by the
magistrate
judge
following
an
undisputedly
complete
Rule
11
inquiry as well as a clear waiver of his right to have his plea

taken by the district court.
A magistrate judge may accept
pleas in felony cases, provided the defendant consents and as

long
as
the
district
court
exercises
de
magistrate judges decision upon request.
novo
review
of
the
See United States v.
Osborne, 345 F.3d 281, 289-90 (4th Cir. 2003) (holding that,
absent
request
or
objection,
district
court
is
not
bound
to
conduct de novo review).

Although the magistrate judges acceptance of Jones
guilty plea was subject to de novo review, it was still properly
entered years prior to his motion to withdraw his guilty plea.
The fact that the magistrate judge accepted the plea subject to
the district courts review does not invalidate an adequate Rule
11 proceeding by a magistrate judge, or provide a defendant with
9
the absolute right to withdraw.
See United States v. Williams,
23 F.3d 629, 634-35 (2d Cir. 1994).

disallow
withdrawal
standard of review.
remains
subject
The courts decision to

to
the
clearly
erroneous
Id.
Moreover, Jones factual assertion that the district

court did not conduct de novo review when it failed to consider
his
allegations
is
unsupported
by
the
record.
As
discussed
above, Jones never alleged in district court that his attorney

lied to him.
for
The district court fully considered the grounds
withdrawal
factors.
raised
by
Jones
and
discussed
the
Further, Jones allegations had nothing to do with the
propriety of the magistrate judges Rule 11 hearing.

Jones
relevant
only
argument
in
support
of
his
assertion
Thus, as
that
the
district court failed to conduct a de novo review is meritless,

there
are
no
grounds
on
which
to
disregard
the
magistrate
judges acceptance of Jones plea.

Accordingly, we affirm Jones conviction and sentence.
This court requires that counsel inform her client, in writing,
of his right to petition the Supreme Court of the United States
for further review.
If the client requests that a petition be
filed,
believes
but
counsel
that
such
petition
would
be
frivolous, then counsel may move in this court for leave to

withdraw from representation.
Counsels motion must state that
a copy thereof was served on the client.

10
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
11

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

December 15, 2010

January 21, 2011

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Reita P. Pendry, Charlotte, North Carolina, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

conspiracy to possess with intent to distribute cocaine.

Government asserts that Jones waiver of appellate rights in his

Whether a defendant has effectively waived the right to

appeal is an issue of law that we review de novo.

undertaking that review, we will enforce an appellate waiver

United States v. Poindexter, 492 F.3d 263, 270 (4th

An appellate waiver is generally considered to be

knowing and intelligent where the court specifically questioned

the defendant regarding the waiver during the Fed. R. Crim. P.

understood the significance of the waiver.

See United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

Poindexter, 492 F.3d at 270.

Claims that proceedings following

the guilty plea were conducted in violation of the defendants

questioned Jones regarding the appellate waiver provision at his

In addition, Jones signed the

plea agreement which included an unambiguous waiver of appellate

Moreover, Jones does not dispute the contention that he

waiver is valid and enforceable.

Thus, we dismiss this claim.

The parties do, however,

improperly denied his motion to continue sentencing in order to

above, claims that proceedings following the guilty plea were

Such is the claim raised here.

States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (discussing

Accordingly, this claim does not

instead, be reviewed on the merits.

reviewed for abuse of discretion.

United States v. Williams,

445 F.3d 724, 739 (4th Cir. 2006).

The trial court abuses its

discretion when its denial of a motion for continuance is an

face of a justifiable request for delay.

whether to grant a motion for substitution of counsel is also

United States v. Corporan-Cuevas,

35 F.3d 953, 956 (4th Cir. 1994).

In evaluating whether the

motion for substitution of counsel, we must consider: (1) the

defendants right to counsel of choice based upon fairness and

Gonzalez-Lopez, 548 U.S.

He had already replaced one attorney (and received

continuances to accommodate) and over a year had passed since he

The court made an adequate inquiry into the

The record supports the conclusion that Jones and his

attorney were communicating, although they disagreed about the

testified at the hearing that no other attorneys were interested

defendant bears the burden of showing a fair and just reason

[A] fair and just reason . . . is one that

United States v. Lambey, 974 F.2d 1389,

determining whether to permit the withdrawal of a guilty plea:

cause prejudice to the government; and (6) whether

Lambey, 974 F.2d at 1394.