United States v. Mills ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4453
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EVERETTE EMERSON MILLS,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00474-NCT-2)
Submitted: February 19, 2009 Decided: March 24, 2009
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte,
North Carolina, for Appellant. Sandra Jane Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Everette Emerson Mills pled guilty, pursuant to a plea
agreement, to one count of conspiring to possess with intent to
distribute five kilograms or more of a mixture or substance
containing a detectable amount of cocaine, in violation of
21 U.S.C. §§ 841(b)(1)(A), 846 (2006). Mills stipulated in his
plea agreement that he was accountable for at least fifteen
kilograms of cocaine. At the conclusion of Mills’ plea hearing,
the district court found Mills’ plea knowing and voluntary and
accepted it. The court sentenced Mills to ninety-four months’
imprisonment, and Mills timely appealed.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). In his Anders brief, Mills
contends that the district court erred in denying his request
to withdraw his guilty plea and that the district court abused
its discretion in finding a factual basis existed for his plea.
In his pro se supplemental brief, Mills argues that the
Government violated his immunity agreement and that the district
court erred in determining his base offense level. We affirm.
Mills first argues that the district court erred in
denying his motion to withdraw his guilty plea. This court
reviews a district court’s refusal to allow a defendant to
withdraw a guilty plea for abuse of discretion. United States
v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). A defendant may
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withdraw a guilty plea before sentence is imposed if “the
defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Six factors are
considered in reviewing the district court’s denial of a motion
to withdraw a guilty plea. United States v. Moore, 931 F.2d
245, 248 (4th Cir. 1991).
This court closely scrutinizes the Fed. R. Crim. P. 11
colloquy and attaches a strong presumption that the plea is
final and binding if the Rule 11 proceeding is adequate. United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). A
voluntary and intelligent plea of guilty “is an admission of all
the elements of a formal criminal charge . . . and constitutes
an admission of all material facts alleged in the charge.”
United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993)
(quotations omitted). We have reviewed the record and conclude
that, to the extent that Mills moved to withdraw his guilty plea
during his first sentencing hearing, the district court did not
abuse its discretion in denying his motion.
Mills next claims the district court abused its
discretion in accepting his guilty plea because the plea was not
supported by a factual basis. This court reviews a “district
court’s finding of a factual basis for abuse of discretion, and
‘. . . will not find an abuse of discretion so long as the
district court could reasonably have determined that there was a
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sufficient factual basis on the record before it.’” United
States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008) (quoting
United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007)).
A district court may conclude that a factual basis exists to
support a plea from anything that appears on the record. United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Mills
admitted he was involved in a conspiracy to distribute cocaine,
twice acknowledged that he was responsible for at least fifteen
kilograms of cocaine, and stated his agreement with the
Government’s factual basis. Accordingly, the record was
sufficient to establish a factual basis on which the court could
accept Mills’ plea.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
In doing so, we have considered the arguments asserted in Mills’
pro se supplemental brief and find them to be without merit. We
therefore deny Mills’ motion to produce record on appeal and
motion of errata and affirm Mills’ conviction and sentence.
This court requires that counsel inform Mills, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Mills requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
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representation. Counsel’s motion must state that a copy thereof
was served on Mills.
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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