UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5263



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DANTE L. WILLIAMS,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:06-cr-00045-HEH)


Submitted:   September 7, 2007        Decided:   September 19, 2007


Before KING and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Taylor B. Stone, BREMNER, JANUS, COOK & STONE, Richmond, Virginia,
for Appellant. Charles Philip Rosenberg, United States Attorney,
Alexandria, Virginia; Peter Sinclair Duffey, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Dante L. Williams appeals from his conviction and 360-

month sentence for possession with intent to distribute five grams

or   more     of   cocaine       base,   in   violation     of     21   U.S.C.

§ 841(b)(1)(B)(iii) (2000).          Counsel for Williams filed a brief

pursuant to Anders v. California, 

(1967), in which he

asserts that there are no meritorious issues for appeal, but asks

this court to review whether the trial court erred in denying

Williams’   request   for    a    reduction   in   his   offense    level   for

acceptance of responsibility, his motion for a downward departure,

and his motion to withdraw his guilty plea.               In response, the

Government filed a motion to dismiss, asserting that in light of

the appellate waiver in Williams’ plea agreement, there was no

basis to challenge his conviction or his sentence.                 Counsel for

Williams stated that he had no response to the motion to dismiss;

however, Williams filed a pro se brief in which he contended that

the indictment was flawed because it did not include the signature

of the grand jury foreman or any notice regarding an enhanced

sentence pursuant to 21 U.S.C. § 851 (2000). Williams also claimed

that his prosecution under 21 U.S.C. § 841 (2000) violated the

separation of powers doctrine.

            Pursuant to a plea agreement, a defendant may waive his

appellate rights under 18 U.S.C. § 3742 (2000).            United States v.

Wiggins, 

, 53 (4th Cir. 1990).          Whether a defendant has


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waived his right to appeal is an issue of law subject to de novo

review.   United States v. Marin, 

, 496 (4th Cir. 1992).

A waiver will preclude appeal of a specific issue if the record

establishes that the waiver is valid and that the issue is within

the scope of that waiver.    United States v. Attar, 

,

731-33 (4th Cir. 1994); cf. United States v. Blick, 

,

171 (4th Cir. 2005) (refusing to enforce waiver for a “narrow class

of claims” that are not within the scope of the waiver).

           In his Anders brief, Williams challenges the district

court’s determinations that he did not qualify for an offense level

reduction or a downward departure.      These claims are squarely

within the scope of the appellate waiver, as Williams waived the

right to appeal any sentence below the statutory maximum or the

manner in which the sentence was determined.   See 

.

     Williams next asserts that the district court erred in denying

his motion to withdraw his guilty plea.     This claim falls outside

of the scope of the appellate waiver, as Williams’ motion alleged

that counsel’s ineffective assistance led him into accepting the

plea agreement.   See 

n.2; United States v.

Craig, 

, 178 (4th Cir. 1993).   Thus, this claim must be

addressed on the merits.       After a plea has been entered, a

defendant may withdraw the plea only if he can show a “fair and

just reason” for requesting the withdrawal.       Fed. R. Crim. P.


                               - 3 -
11(d)(2)(B).      This court reviews the district court’s refusal to

allow    a    defendant   to   withdraw   a   guilty   plea   for   abuse    of

discretion.      United States v. Bowman, 

, 413-14 (4th

Cir. 2003).       When considering whether to permit a defendant to

withdraw a guilty plea, a district court must evaluate the factors

enumerated in United States v. Moore, 

, 248 (4th Cir.

1991).       The most important consideration is whether the Rule 11

colloquy was properly conducted and the plea was both counseled and

voluntary.      See United States v. Bowman, 

, 413-14 (4th

Cir. 2003).

              In his withdrawal motion and at the subsequent hearing,

Williams alleged that he accepted the plea agreement only because

counsel told him that the Government would withdraw its notice

seeking an enhanced sentence pursuant to 21 U.S.C. § 851 if he

entered a guilty plea.         While claiming that he was not guilty of

the crimes charged, Williams did not assert any substantive error

with respect to the Rule 11 hearing.          At the plea hearing, Williams

stated he was satisfied with counsel’s performance, that there were

no promises or expectations that had not been included in the plea

agreement, and that he was guilty of the charged offense.                   The

record establishes that Williams knowingly and voluntarily entered

into his guilty plea with a full understanding of the consequences,

and that there was no error in the district court’s acceptance of

his plea.


                                    - 4 -
             Williams     also   failed    to   credibly   assert    his   legal

innocence at the hearing on his motion to withdraw his guilty plea.

In an attempt to repudiate his admissions made at the Rule 11

hearing, Williams stated only that he “went along with what my

lawyer told me to do.”            The district court held that despite

Williams’ denial of ownership of the narcotics, he had previously

admitted he knew they were present in his car and that he was

guilty of the charged offense. See Blackledge v. Allison, 

, 74 (1977).      None of the remaining factors weigh in Williams’

favor, as he had competent assistance of counsel through the

proceedings, and he filed the motion to withdraw his guilty plea

nearly three months after the Rule 11 hearing.             Therefore, we find

that the district court did not abuse its discretion in denying

Williams’ motion to withdraw his guilty plea.

             As for his pro se claims, Williams first contends that

his indictment was not signed by the grand jury foreperson and that

the court therefore lacked subject matter jurisdiction in this

case.   Because subject matter jurisdiction involves the power of a

court to hear a case, claims that a court lacked jurisdiction are

not barred by an appellate waiver.              See United States v. Cotton,

,   630    (2002).        However,   contrary   to   Williams’

contention, failure by the foreperson to sign the indictment is a

non-jurisdictional error that is foreclosed by Williams’ guilty

plea.   See Frisbie v. United States, 

, 163-65 (1895);


                                     - 5 -
United States v. Easton, 

, 161-62 (5th Cir. 1991);

United States v. Adu, 

, 123 (6th Cir. 1996); see also

Tollett v. Henderson, 

, 266-67 (1973).                 Accordingly,

this claim is meritless.

             Williams’ next claim is that his indictment failed to

make any reference to 21 U.S.C. § 851 or the increased penalty

provisions      that    resulted    from   his   prior    felony   convictions.

However, failure by the Government to comply with the requirements

under § 851 is a non-jurisdictional error; therefore, this claim is

barred by the appellate waiver.            See United States v. Beasley, __

F.3d __, 

(4th Cir. July 25, 2007) (No. 04-4107).

           Finally,      Williams     contends   that    his   prosecution    and

conviction      under   21   U.S.C.    §   841(b)(1)(B)(iii)       violated   the

separation of powers doctrine, as he claims that the federal

government lacks “exclusive jurisdiction” in this area and that he

could not be charged by the federal government after his state

charges   had    been    nolle     prosequied.     Assuming    that   Williams’

separation of powers claim is a challenge to the jurisdiction of

the federal courts, and therefore would not be barred by the

appellate waiver, this claim is meritless.               See Rinaldi v. United

States, 

, 28 (1977).

             Accordingly, we grant the Government’s motion to dismiss

as to the claims foreclosed by the plea waiver, deny the motion as

to Williams’ claims that the district court erred in denying his


                                       - 6 -
motion to withdraw his guilty plea, that the district court lacked

jurisdiction due to a defect in the indictment, and that his

conviction violated the separation of powers doctrine, and we

affirm as to those claims.   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 in the

decisional process.



                                                DISMISSED IN PART;
                                                  AFFIRMED IN PART




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