United States v. Washington

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-4646

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY SHAMON WASHINGTON, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:04-cr-00093-nkm-ALL)

Submitted: April 30, 2007 Decided: May 24, 2007

Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles M. Henter, DAVIDSON & KITZMANN, PLC, Charlottesville, Virginia, for Appellant. John L. Brownlee, United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Anthony Shamon Washington pled guilty to possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(2000), and possession of cocaine base (“crack”), in violation of

21 U.S.C. § 844 (2000). The district court sentenced him to

seventy months in prison on the firearm count and a concurrent

thirty-six months’ imprisonment on the drug count. Washington

appeals, challenging the district court’s denial of his motion to

withdraw his guilty plea. Finding no merit to his claim, we

affirm.

We review the district court’s denial of a motion to

withdraw a guilty plea 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, even before

sentencing. United States v. Moore, 931 F.2d 245, 248 (4th Cir.

1991). Rather, he must demonstrate that a “fair and just reason”

supports his request to withdraw his plea. Id. In deciding

whether to permit a defendant to withdraw his guilty plea, the district court considers:

(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 the entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources.

Id.

- 2 - Washington received an adequate Rule 11 hearing, creating

a strong presumption that his guilty plea was final and binding.

United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).

Washington argues, however, that the district court erred in

denying his motion to withdraw his guilty plea because his attorney

and the government erroneously led him to believe that his

sentencing guideline range would be lower than the guideline range

ultimately calculated in the presentence report (“PSR”). He

further argues that the district court relied on the wrong standard

because he claims that the district court denied his motion based

on its finding that he failed to credibly assert his legal

innocence.

Despite the erroneous advice of counsel concerning

Washington’s guideline range, at the plea hearing Washington was

informed of the maximum sentence he faced for each count, that the

court could not calculate his sentence until the probation officer

prepared the PSR, and that he could not withdraw his guilty plea if

his sentence was harsher than he expected. Washington acknowledged

that he understood and, with this knowledge, he pled guilty. We

find that Washington did not meet the heavy burden of showing that

counsel’s erroneous advice, given before the Rule 11 hearing,

established a fair and just reason for withdrawing his guilty plea.

United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992). Furthermore, Washington’s claim that the district court relied on

the wrong legal standard is not supported by the record. We

therefore conclude that the district court did not abuse its

- 3 - discretion in denying Washington’s motion to withdraw his guilty

plea.

Accordingly, we affirm Washington’s convictions. 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

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