US v. Phong Tran

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [999618854-2]. Originating case number: 1:13-cr-00645-WDQ-1. Copies to all parties and the district court. [999651503]. [15-4175]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4175

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHONG DINH TRAN, a/k/a Tran Tran, a/k/a Randy Tran,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:13-cr-00645-WDQ-1)

Submitted:

August 27, 2015

Decided:

September 1, 2015

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Woll, WOLL & WOLL, PA, Bethesda,
Appellant.
Leo Joseph Wise, OFFICE OF THE
ATTORNEY, Baltimore, Maryland, for Appellee.

Maryland, for
UNITED STATES

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Phong Dinh Tran pleaded guilty to conspiracy to commit bank
fraud, in violation of 18 U.S.C. § 1349 (2012).

On appeal, he

argues that the district court erred in denying his motion to
withdraw his guilty plea.

The Government has filed a motion to

dismiss the appeal pursuant to the appellate waiver contained in
Tran’s

plea

agreement.

We

deny

the

motion

to

dismiss

and

affirm.
“It is well settled that a criminal defendant may waive the
statutory

right

to

appeal

his

sentence.”

United

States

v.

Archie, 771 F.3d 217, 221 (4th Cir. 2014), cert. denied, 135 S.
Ct. 1579 (2015).
defendant
establishes

from

“[T]he waiver will be enforced to preclude a
appealing

that

the

a

waiver

specific
is

valid

issue
and

appealed is within the scope of the waiver.”
appellate

waiver’s

validity

de

novo.

if
the
Id.

the

record

issue

being

We review an

United

States

v.

Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).
We conclude that Tran’s appellate waiver does not prevent
our

review

of

the

district

withdraw his guilty plea.

court’s

denial

of

his

motion

to

Even a valid waiver of appellate

rights will not foreclose a colorable constitutional challenge
to the validity of a guilty plea.
F.3d 727, 733 n.2 (4th Cir. 1994).

2

United States v. Attar, 38
Because Tran’s motion to

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withdraw

was

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premised

on

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his

claim

that

his

plea

was

not

knowing, we deny the government’s motion to dismiss the appeal.
We review the denial of a plea withdrawal motion for abuse
of discretion.

United States v. Thompson-Riviere, 561 F.3d 345,

348

2009).

(4th

Cir.

To

withdraw

a

guilty

plea

prior

to

sentencing, a defendant must “show a fair and just reason for
requesting
“[T]he

the

withdrawal.”

defendant

bears

the

Fed.

R.

burden

withdrawal should be granted.”

Crim.
of

P.

11(d)(2)(B).

demonstrating

that

Thompson-Riviere, 561 F.3d at

348 (internal quotation marks omitted).

Where, as here, the

district

with

court

substantially

complies

the

Rule

11

requirements, the defendant must overcome a strong presumption
that his guilty plea is final and binding.

United States v.

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
In deciding a plea withdrawal motion, the district court
must consider the six factors established in United States v.
Moore, 931 F.2d 245 (4th Cir. 1991).
at 348.

Thompson-Riviere, 561 F.3d

We have reviewed the record in this case and, after

carefully considering these factors, conclude that the district
court did not abuse its discretion in denying Tran’s motion to
withdraw his guilty plea.
Accordingly, we affirm the district court’s judgment.
dispense

with

oral

argument

because

3

the

facts

and

We

legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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