USCA4 Appeal: 21-4424 Doc: 48 Filed: 07/28/2022 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4424
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA AUSTIN KRAMER, a/k/a Benjamin Franklin,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Richard E. Myers, II, Chief District Judge. (7:20-cr-00136-M-1)
Submitted: July 19, 2022 Decided: July 28, 2022
Before GREGORY, Chief Judge, and HARRIS and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Kelly Margolis Dagger, Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Natasha K. Harnwell-Davis, Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4424 Doc: 48 Filed: 07/28/2022 Pg: 2 of 5
PER CURIAM:
Joshua Austin Kramer appeals his convictions for a methamphetamine conspiracy
and a substantive distribution count. On appeal, Kramer challenges the denial of his motion
to withdraw his guilty plea. We find that the district court did not abuse its discretion in
denying the motion. Accordingly, we affirm.
We review the denial of a motion to withdraw a guilty plea for abuse of discretion.
United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). “A district court abuses its
discretion when it acts in an arbitrary manner, when it fails to consider
judicially-recognized factors limiting its discretion, or when it relies on erroneous factual
or legal premises.” Id. (internal quotation marks omitted). “A defendant has no absolute
right to withdraw a guilty plea.” Id. at 383-84 (internal quotation marks omitted). To
withdraw a guilty plea prior to 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, 561 F.3d 345, 348 (4th Cir. 2009) (alteration and internal quotation
marks omitted). “The most important consideration in resolving a motion to withdraw a
guilty plea is an evaluation of the Rule 11 colloquy at which the guilty plea was accepted.”
Nicholson, 676 F.3d at 384 (internal quotation marks omitted). “[A] properly conducted
Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to
have his plea withdrawn.” Id. (internal quotation marks omitted).
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Additionally, we have identified the following non-exclusive six factors to consider
when determining whether a “fair and just reason” exists to warrant withdrawal of a guilty
plea:
(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, (4) whether defendant has had the close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The first, second, and fourth
factors are generally the most significant, United States v. Sparks, 67 F.3d 1145, 1154 (4th
Cir. 1995). We find that the district court did not abuse its discretion in finding that these
factors counseled against allowing Kramer to withdraw his plea.
The first factor is whether the defendant offered credible evidence that his plea was
not knowing or not voluntary. Here, Kramer does not dispute that his Fed. R. Crim. P. 11
hearing was properly conducted. However, he argues that, although he agreed to enter his
plea and stated that his plea was voluntary, he was merely providing the responses directed
by his attorney and was afraid to make any further statements.
The record does not support this assertion. Rather, Kramer stated that he had gone
over the superseding indictment with his attorney and that he understood the charges
against him. He averred that he was not forced or threatened to plead guilty and that he
was fully satisfied with his lawyer. Kramer has failed to provide evidence to rebut the
strong presumption that his sworn statements should be considered binding. See
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Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a
strong presumption of verity.”). *
The next Moore factor considers whether the defendant has credibly asserted his
legal innocence. Kramer contends that he is legally innocent of the conspiracy charge
because he had a mere buyer-seller relationship with his customers. However, evidence of
a buyer-seller relationship, coupled with evidence of a “substantial quantity of drugs,” is
sufficient to establish a conspiracy. United States v. Yearwood, 518 F.3d 220, 226 (4th
Cir. 2008). To credibly assert legal innocence, a defendant must “present evidence that
(1) has the quality or power of inspiring belief, and (2) tends to defeat the elements in the
government’s prima facie case or to make out a successful affirmative defense.”
Thompson-Riviere, 561 F.3d at 353 (citations and internal quotation marks omitted).
Kramer presents no evidence of his innocence, arguing only that the Government’s
evidence was insufficient. Moreover, he does not claim to be legally innocent of the
distribution charge to which he also pled guilty. The factual basis to which Kramer
admitted during the Rule 11 hearing established a conspiracy between Kramer and his
customers. Notably, Kramer admitted that he sold ounce quantities of methamphetamine
to one individual over a period of several months and had sold over 50 grams of
methamphetamine over a period of months to another individual. Kramer presents no
evidence that the drug quantities or time periods admitted at the Rule 11 hearing were
* To the extent that Kramer alleges that his brain injury rendered him incompetent to plead guilty, he has provided no evidence in support, and his Rule 11 hearing and the affidavit of his former counsel weigh against such a finding.
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incorrect and provides no legal support for the conclusion that the quantities and length of
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USCA4 Appeal: 21-4424 Doc: 48 Filed: 07/28/2022 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4424
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA AUSTIN KRAMER, a/k/a Benjamin Franklin,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Richard E. Myers, II, Chief District Judge. (7:20-cr-00136-M-1)
Submitted: July 19, 2022 Decided: July 28, 2022
Before GREGORY, Chief Judge, and HARRIS and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Kelly Margolis Dagger, Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Natasha K. Harnwell-Davis, Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4424 Doc: 48 Filed: 07/28/2022 Pg: 2 of 5
PER CURIAM:
Joshua Austin Kramer appeals his convictions for a methamphetamine conspiracy
and a substantive distribution count. On appeal, Kramer challenges the denial of his motion
to withdraw his guilty plea. We find that the district court did not abuse its discretion in
denying the motion. Accordingly, we affirm.
We review the denial of a motion to withdraw a guilty plea for abuse of discretion.
United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). “A district court abuses its
discretion when it acts in an arbitrary manner, when it fails to consider
judicially-recognized factors limiting its discretion, or when it relies on erroneous factual
or legal premises.” Id. (internal quotation marks omitted). “A defendant has no absolute
right to withdraw a guilty plea.” Id. at 383-84 (internal quotation marks omitted). To
withdraw a guilty plea prior to 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, 561 F.3d 345, 348 (4th Cir. 2009) (alteration and internal quotation
marks omitted). “The most important consideration in resolving a motion to withdraw a
guilty plea is an evaluation of the Rule 11 colloquy at which the guilty plea was accepted.”
Nicholson, 676 F.3d at 384 (internal quotation marks omitted). “[A] properly conducted
Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to
have his plea withdrawn.” Id. (internal quotation marks omitted).
2 USCA4 Appeal: 21-4424 Doc: 48 Filed: 07/28/2022 Pg: 3 of 5
Additionally, we have identified the following non-exclusive six factors to consider
when determining whether a “fair and just reason” exists to warrant withdrawal of a guilty
plea:
(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, (4) whether defendant has had the close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The first, second, and fourth
factors are generally the most significant, United States v. Sparks, 67 F.3d 1145, 1154 (4th
Cir. 1995). We find that the district court did not abuse its discretion in finding that these
factors counseled against allowing Kramer to withdraw his plea.
The first factor is whether the defendant offered credible evidence that his plea was
not knowing or not voluntary. Here, Kramer does not dispute that his Fed. R. Crim. P. 11
hearing was properly conducted. However, he argues that, although he agreed to enter his
plea and stated that his plea was voluntary, he was merely providing the responses directed
by his attorney and was afraid to make any further statements.
The record does not support this assertion. Rather, Kramer stated that he had gone
over the superseding indictment with his attorney and that he understood the charges
against him. He averred that he was not forced or threatened to plead guilty and that he
was fully satisfied with his lawyer. Kramer has failed to provide evidence to rebut the
strong presumption that his sworn statements should be considered binding. See
3 USCA4 Appeal: 21-4424 Doc: 48 Filed: 07/28/2022 Pg: 4 of 5
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a
strong presumption of verity.”). *
The next Moore factor considers whether the defendant has credibly asserted his
legal innocence. Kramer contends that he is legally innocent of the conspiracy charge
because he had a mere buyer-seller relationship with his customers. However, evidence of
a buyer-seller relationship, coupled with evidence of a “substantial quantity of drugs,” is
sufficient to establish a conspiracy. United States v. Yearwood, 518 F.3d 220, 226 (4th
Cir. 2008). To credibly assert legal innocence, a defendant must “present evidence that
(1) has the quality or power of inspiring belief, and (2) tends to defeat the elements in the
government’s prima facie case or to make out a successful affirmative defense.”
Thompson-Riviere, 561 F.3d at 353 (citations and internal quotation marks omitted).
Kramer presents no evidence of his innocence, arguing only that the Government’s
evidence was insufficient. Moreover, he does not claim to be legally innocent of the
distribution charge to which he also pled guilty. The factual basis to which Kramer
admitted during the Rule 11 hearing established a conspiracy between Kramer and his
customers. Notably, Kramer admitted that he sold ounce quantities of methamphetamine
to one individual over a period of several months and had sold over 50 grams of
methamphetamine over a period of months to another individual. Kramer presents no
evidence that the drug quantities or time periods admitted at the Rule 11 hearing were
* To the extent that Kramer alleges that his brain injury rendered him incompetent to plead guilty, he has provided no evidence in support, and his Rule 11 hearing and the affidavit of his former counsel weigh against such a finding.
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incorrect and provides no legal support for the conclusion that the quantities and length of
time of the buyer/seller relationship were insufficient to establish a conspiracy.
Accordingly, we conclude that the district court properly found that the second Moore
factor also cuts against Kramer.
The fourth Moore factor questions whether the defendant had the close assistance
of competent counsel. Kramer asserts that his attorney failed to review discovery and
stated that he would not do so unless Kramer went to trial. However, counsel refutes this
statement, and Kramer stated in his Rule 11 hearing that he was satisfied with his counsel’s
performance. Notably, counsel negotiated a plea whereby four of six charges were dropped
(one of which was admitted to by Kramer in his motion to withdraw), including a firearm
charge that carried a consecutive 10-year mandatory minimum sentence. Absent further
evidence, Kramer has failed to credibly show that his attorney was incompetent.
Given that the district court conducted the Rule 11 colloquy appropriately and that
the first, second, and fourth Moore factors cut against granting Kramer’s motion, the court
did not abuse its discretion in not allowing Kramer to withdraw his guilty plea. See Sparks,
67 F.3d at 1154 (stating that the first, second, and fourth factors are generally the most
significant). We therefore affirm. 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