United States v. Jerry A. Booker ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4820
JERRY A. BOOKER, a/k/a Moon,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-98-452)
Submitted: April 13, 2000
Decided: April 21, 2000
Before WIDENER and WILKINS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Gordon D. Kromberg, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Pursuant to the terms of a written plea agreement, Jerry A. Booker
pled guilty to conspiracy to possess and distribute crack and powder
cocaine, 21 U.S.C.A. § 846 (West 1999), and conspiracy to commit
money laundering, 18 U.S.C.A. § 1956(h) (West Supp. 1999). The
district court imposed sentence on April 2, 1999. On September 8,
1999, this court granted the parties' joint motion for remand and
returned the case to the district court for resentencing. On remand,
Booker filed a motion to withdraw his guilty plea and a motion for
new counsel. He now appeals from the district court's denial of those
motions. We affirm.
To determine whether a defendant has shown a "fair and just rea-
son" to withdraw his guilty plea, see Fed. R. Crim. P. 32(e), the court
considers the factors discussed in United States v. Moore, 931 F.2d
245, 248 (4th Cir. 1991). In considering these factors, we closely
scrutinize the Federal Rule of Criminal Procedure 11 colloquy and if
the proceeding is adequate, attach "a strong presumption that the plea
is final and binding." United States v. Lambey, 974 F.2d 1389, 1394
(4th Cir. 1992); see United States v. Puckett , 61 F.3d 1092, 1099 (4th
Cir. 1995).
A review of the transcript of Booker's Rule 11 colloquy demon-
strates that the district court was within its discretion in denying
Booker's motion to withdraw his guilty plea. Booker, under oath,
asserted that he read, understood, and reviewed with counsel the
indictment, the plea agreement, and the statement of facts. He stated
that no one--including his attorney--had promised or suggested that
he would receive a lighter sentence by pleading guilty and no prom-
ises or threats induced his plea. He also understood that his sentence
would be at least ten years. Booker denied any claim of innocence of
the offenses and asserted that he was satisfied with the representation
his attorney had provided.
Booker's statements during the Rule 11 colloquy constitute strong
evidence of the voluntariness of his plea. See United States v.
DeFusco, 949 F.2d 114, 119 (4th Cir. 1991); see also Blackledge v.
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Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court
carry a srong presumption of verity."). Also, Booker makes no claim
that he is innocent, and his motion to withdraw his plea was not filed
until nine months after he entered his guilty plea. We find that the dis-
trict court appropriately considered the factors set forth in Moore and
did not abuse its discretion in denying Booker's motion to withdraw
his guilty plea. See United States v. Wilson, 81 F.3d 1300, 1305 (4th
Cir. 1996).
Booker requested new counsel on the same bases for which he
sought withdrawal of the plea. The motion for new counsel was
untimely filed nine months after Booker entered his guilty plea. Also,
the district court inquired of Booker about the discrepancies between
his statements at the Rule 11 hearing and his statements in his request
for new counsel. He allowed Booker to explain his position on the
record. Lastly, we find that the conflict between counsel and Booker
did not result in a lack of communication nor did it prevent Booker's
presentation of a defense. See United States v. DeTemple, 162 F.3d
279, 288 (4th Cir. 1998) (discussing factors court should consider);
cert. denied, 119 S. Ct. 1993 (1999). We therefore find no abuse of
discretion by the district court in denying Booker's motion for new
counsel. See Morris v. Slappy, 461 U.S. 1, 13-14 (1983); United
States v. Burns, 990 F.2d 1426, 1437-38 (4th Cir. 1993).
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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