United States v. Wagner , 88 F. App'x 593 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4409
THEODORE THOMAS WAGNER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-02-181)
Submitted: December 31, 2003
Decided: February 23, 2004
Before LUTTIG and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Andrew J. Savage, SAVAGE & SAVAGE, P.A., Charleston, South
Carolina, for Appellant. Michael Rhett DeHart, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WAGNER
OPINION
PER CURIAM:
Pursuant to a plea agreement, Theodore Thomas Wagner pled
guilty to one count of production of child pornography, in violation
of 18 U.S.C. § 2251(a) (2000), and one count of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2000). The
district court denied his motion to withdraw his guilty plea and sen-
tenced Wagner to 151 months in prison. Wagner’s counsel has filed
a brief in accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious grounds for appeal.
However, he raises the issues of whether Wagner’s guilty plea was
knowing and voluntary and whether the district court abused its dis-
cretion by denying Wagner’s motion to withdraw his guilty plea.
Wagner filed a pro se supplemental brief reiterating the claims raised
by counsel and asserting claims of ineffective assistance of counsel
and prosecutorial misconduct. Finding no reversible error, we affirm.
The district court complied with Rule 11 of the Federal Rules of
Criminal Procedure in accepting Wagner’s guilty plea and we con-
clude that nothing in the record calls into question the voluntariness
of Wagner’s plea. Nevertheless, Wagner claims that his guilty plea
was not knowing and voluntary because the record does not show he
knew that, by unconditionally pleading guilty, he was giving up his
ability to challenge the legality of the search of his residence.
A guilty plea must be "a voluntary and intelligent choice among the
alternative courses of action open to the defendant." North Carolina
v. Alford, 400 U.S. 25, 31 (1970). A defendant must know the direct
consequences of his guilty plea in order for it to be knowing and vol-
untary. Brady v. United States, 397 U.S. 742, 755 (1970); Cuthrell v.
Director, Patuxent Inst., 475 F.2d 1364, 1365 (4th Cir. 1973). How-
ever, "Rule 11 does not require a district court to inform a defendant
that, by pleading guilty, [he] is waiving [his] right to appeal any ante-
cedent rulings or constitutional violations." United States v. Floyd,
108 F.3d 202, 204 n.2 (9th Cir. 1997); accord United States v. Bell,
966 F.2d 914, 917 (5th Cir. 1992); United States v. Fisher, 772 F.2d
371, 375 (5th Cir. 1985). We conclude that Wagner’s guilty plea was
not rendered unknowing and involuntary merely because the district
UNITED STATES v. WAGNER 3
court did not advise him about the possibility of entering a conditional
guilty plea.
Wagner also contends that the district court erred in denying his
motion to withdraw his guilty plea. This court reviews the 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. United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Rather, a defen-
dant bears the burden of demonstrating that a "fair and just reason"
supports his request to withdraw his plea. Id.Factors considered in determining whether a defendant has shown
a fair and just reason for withdrawing his guilty plea include:
(1) whether the defendant has offered credible evidence that
his plea was not knowing or 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 close assistance of competent counsel, (5) whether with-
drawal will cause prejudice to the government, and (6)
whether it will inconvenience the court and waste judicial
resources.
Id. Based on our review of the record, we uphold the district court’s
finding that these factors do not favor Wagner’s position and con-
clude that the court did not err by denying his motion to withdraw his
guilty plea.
Wagner also asserts several claims of ineffective assistance of
counsel and a claim of prosecutorial misconduct. To the extent that
he asserts prosecutorial misconduct, his claim is not supported by the
record. Furthermore, we do not consider claims of ineffective assis-
tance of counsel claims on direct appeal unless counsel’s ineffective-
ness conclusively appears on the face of the record. United States v.
DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Because the record does
not conclusively establish that counsel was ineffective, any such
claims are more appropriately raised, if at all, in a 28 U.S.C. § 22554 UNITED STATES v. WAGNER
(2000) motion. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997).
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Wagner’s conviction and sentence. Wagner’s pro se
motion for reconsideration of his counseled Motion for Leave to File
Attachments to the Brief of Appellant and his motion to expedite the
appeal are denied. This court requires that counsel inform his client,
in writing, of his right to petition the Supreme Court of the United
States for further review. If the client 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 represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client. 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