United States v. David Phillips , 587 F. App'x 79 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4459
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID NEIL PHILLIPS, a/k/a Neil Phillips,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cr-00236-F-1)
Submitted: November 13, 2014 Decided: December 15, 2014
Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven Kiersh, LAW OFFICE OF STEVEN KIERSH, Washington, D.C.,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Neil Phillips pleaded guilty to conspiracy to
manufacture, distribute, dispense, and possess with intent to
distribute 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine and five
kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)
and 846 (2012); and possession of a firearm in furtherance of a
drug trafficking crime, 18 U.S.C. § 924(c) (2012). After
denying Phillips’s motion to withdraw his guilty plea, the
district court sentenced him to life imprisonment on the drug
conspiracy, plus a sixty-month consecutive sentence for the
firearm conviction. Phillips now appeals, arguing that the
district court erred in denying his motion to withdraw his
guilty plea. We affirm.
We review a district court’s 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
defendant seeking to withdraw his guilty plea bears the burden
of “show[ing] a fair and just reason” for withdrawing his guilty
plea. Fed. R. Crim. P. 11(d)(2)(B); Nicholson, 676 F.3d at 383.
In deciding whether to permit a defendant to withdraw
his guilty plea, a district court should consider:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
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asserted his legal innocence; (3) whether there has
been a delay between 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.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
While all of these factors should be considered, the key factor
is whether the Rule 11 hearing was properly conducted.
Nicholson, 676 F.3d at 384.
We have reviewed the record and discern no abuse of
discretion in the district court’s denial of Phillips’s motion.
Phillips has failed to establish that his guilty plea was not
knowing and voluntary. During the Rule 11 hearing, the district
court twice informed Phillips that these convictions carried a
potential maximum penalty of two life sentences, which Phillips
indicated that he understood. The written plea agreement signed
by Phillips similarly stated in three places that the maximum
penalty was life imprisonment for each charge.
Furthermore, the remaining factors support the
district court’s decision. Phillips has offered no support for
his assertions that counsel’s failure to file a motion to
suppress deprived him of “close assistance of counsel” in
connection with his plea. Nor has he provided any evidence to
support his claim of legal innocence. Phillips also waited more
than six months and until the morning of his sentencing hearing
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to seek withdrawal of his plea, at considerable inconvenience to
the government and the district court.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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