United States v. McQuinn

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4955
ATARAH MCQUINN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-02-95)
Submitted: July 29, 2003
Decided: August 13, 2003
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
David Lassiter, Jr., JEFFERSON & LASSITER, Richmond, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Robert E.
Trono, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
2 UNITED STATES v. MCQUINN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Atarah McQuinn seeks to appeal her conviction and sentence for
conspiracy to distribute and possession with intent to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C. § 846(2000), and distribution of five grams or more of cocaine base, a vio-
lation of 21 U.S.C. § 841 (2000). She also appeals the order of the
district court denying her motion to withdraw her guilty plea. The
Government has moved to dismiss the appeal as waived pursuant to
a waiver of appellate rights contained in the plea agreement. For the
reasons stated below, we dismiss the appeal on the Government’s
motion as to McQuinn’s sentencing claims and affirm the district
court’s order denying her motion to withdraw her guilty plea.
"[A] waiver of appeal rights in a plea agreement will not bar appel-
late review of the denial of a motion to withdraw the underlying
guilty plea when the plea-withdrawal motion incorporates a colorable
claim that the plea agreement itself—and hence the waiver of appeal
rights that it contains—is tainted by constitutional error." United
States v. Attar, 38 F.3d 727, 733 n.2 (4th Cir. 1994). McQuinn claims
her plea was unknowing and involuntary. We find that this claim is
outside the scope of the waiver, and thus deny the Government’s
motion with respect to this claim, and proceed to review the district
court’s order.
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. United States v. Moore, 931 F.2d 245,
248 (4th Cir. 1991). Rather, a defendant bears the burden of demon-
strating that a "fair and just reason" supports her request to withdraw
her plea. Id. McQuinn cannot meet this standard, and the district court
did not abuse its discretion in denying the motion to withdraw her
guilty plea. We therefore affirm its order.
UNITED STATES v. MCQUINN 3
McQuinn raises two claims regarding her sentence. The plea agree-
ment specifically included a waiver of McQuinn’s right to appeal her
sentence. A waiver of appeal provision in a valid plea agreement is
enforceable if it resulted from a knowing and intelligent decision to
forgo an appeal. Attar, 38 F.3d at 731; United States v. Wiggins, 905
F.2d 51, 53 (4th Cir. 1990). This court reviews de novo the validity
of a waiver. United States v. Brown, 232 F.3d 399, 402-03 (4th Cir.
2000). We conclude that McQuinn knowingly agreed to the waiver.
Therefore, as to McQuinn’s challenge to her sentence, we grant the
Government’s motion and dismiss the appeal.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART