United States v. Elliott Brown , 435 F. App'x 182 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4872
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELLIOTT BROWN, a/k/a Ta Dow,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00415-WDQ-2)
Submitted: May 24, 2011 Decided: June 16, 2011
Before MOTZ and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard B. Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A.,
Baltimore, Maryland, for Appellant. Rod J. Rosentein, United
States Attorney, Christopher Mason, Special Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elliott Brown pleaded guilty to conspiracy to possess
with intent to distribute and distribute heroin, in violation of
21 U.S.C. § 846 (2006). The district court sentenced Brown to
360 months of imprisonment and he now appeals. Finding no
error, we affirm.
Brown argues that the district court abused its
discretion in denying his motion to withdraw his guilty plea,
based in part on his assertion that his first appointed counsel
rendered ineffective assistance. We review a district court’s
denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Dyess, 478 F.3d 224, 237 (4th Cir.
2007). A defendant seeking to withdraw his guilty plea bears
the burden of demonstrating that withdrawal should be granted.
Id. 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 not
voluntary; (2) whether the defendant has credibly
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)
(citation omitted).
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Moreover, “[t]o prevail on [the fourth] factor,
[Brown] must demonstrate (1) that his counsel’s performance fell
below an objective standard of reasonableness and (2) that there
was a reasonable probability that, but for counsel’s error, he
would not have pleaded guilty and would have insisted on going
to trial.” United States v. Bowman, 348 F.3d 408, 416 (4th Cir.
2003) (internal quotation marks and citations omitted). We have
thoroughly reviewed the record and conclude that the district
court did not abuse its discretion in denying Brown’s motion to
withdraw his guilty plea.
Brown has also filed a motion to file a pro se
supplemental brief. In his brief, Brown argues that there was
an insufficient factual basis for his guilty plea and that the
district court erred in finding that he was a career offender
under the Guidelines. Having reviewed the record, we conclude
that the issues raised in Brown’s pro se brief lack merit.
Accordingly, we grant Brown’s motion to file a pro se
supplemental brief and affirm the judgment of the district
court. 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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