United States v. Dogan ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4292
CHARLES DOGAN, JR., a/k/a Chuckie
Dogan,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4293
CHARLES DOGAN, JR., a/k/a Chuckie
Dogan,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-96-66, CR-91-55)
Submitted: June 23, 1998
Decided: July 15, 1998
Before NIEMEYER and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Michael R. Cline, MICHAEL R. CLINE LAW OFFICES, Charleston,
West Virginia, for Appellant. Rebecca A. Betts, United States Attor-
ney, Monica K. Schwartz, Assistant United States Attorney, Charles-
ton, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Charles Dogan, Jr., appeals his conviction after pleading guilty to
one count of possession with intent to distribute cocaine base in viola-
tion of 21 U.S.C. § 846 (1994), and the revocation of his supervised
release. Dogan attempted to withdraw his guilty plea to the possession
with intent to distribute charge and the district court denied the
motion. On appeal, Dogan specifically addresses only the district
court's denial of his motion to withdraw. Finding no error, we affirm.
An indictment charged Dogan with seven counts of possession
with intent to distribute cocaine base. Members of a Charleston, West
Virginia, police drug task force investigated Dogan and used two con-
fidential informants (CI) to make five controlled buys of cocaine base
from Dogan. After the last controlled buy, police approached the
vehicle in which Dogan rode to arrest him for violation of supervised
release. As the traffic stop occurred, Dogan threw a film canister con-
taining 5.69 grams of cocaine base from the vehicle. A search of
Dogan revealed $45.00 of the pre-recorded currency used earlier that
day in the controlled buy.
Dogan pled guilty to one count of the indictment on August 21,
1997, the day trial was to begin. Approximately one day earlier,
Dogan's mother received a grand jury target letter regarding threats
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made against the two CI's who would be witnesses in Dogan's case.
Dogan's mother was the subject of an investigation because one of
the CI's in the case received a suspicious visit from Dogan's mother
and the same CI received written notes threatening her and directing
her not to testify. A vehicle driven by Dogan's mother approached the
other CI, and a passenger from Dogan's mother's vehicle assaulted
the CI and ripped the back pocket from his pants. The fingerprint and
handwriting evidence proved to be inconclusive and therefore
Dogan's mother was not charged.
The district court conducted a thorough Rule 11 colloquy when
taking the plea. On November 21, 1996, the day of Dogan's sentenc-
ing and approximately ninety days after he entered his plea, Dogan
filed a pro se complaint alleging that there were problems with his
lawyer and that threats against his mother induced his plea. Dogan's
appointed counsel, an assistant federal public offender, moved to
withdraw. Her motion was granted and the district court appointed
new counsel. On January 2, 1997, Dogan filed a formal motion to
withdraw his plea. The district court held an evidentiary hearing on
the motion on January 2 and 3, 1997. The district court denied the
motion on March 31, 1997.
Rule 32(d) of the Federal Rules of Criminal Procedure governs a
motion to withdraw a guilty plea. Dogan bears the burden to show a
fair and just reason for the withdrawal. See United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). Factors relevant to establishing a
fair and just reason include:
(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 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. This court reviews the denial of a motion to withdraw a guilty plea
for abuse of discretion. See United States v. Lambert, 994 F.2d 1088,
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1093 (4th Cir. 1993). The district court's factual findings in support
of its decision to deny the motion will be overturned only if they are
clearly erroneous. See United States v. Suter , 755 F.2d 523, 525 (7th
Cir. 1985).
Dogan based his motion upon two claims: that the only reason he
pled guilty was to spare his mother from a charge of threatening a
witness, and that he was innocent of the charge to which he pled
guilty. Dogan did not offer any evidence of threats, fear, coercion, his
counsel's errors, or his innocence. Further, Dogan knew about these
issues at the time of the Rule 11 colloquy. He did not assert any of
these claims during the hearing and acknowledged that he was enter-
ing into the agreement knowingly and voluntarily. To the extent that
Dogan's plea was premised in part on his wish to protect his mother,
such a decision does not undermine the validity of his plea. See, e.g.,
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991). As to
Dogan's claim of innocence, he admitted to his distribution activity
at the Rule 11 colloquy, and his claim of innocence is contradicted by
the testimony of three detectives and two CI's. These facts do not
favor a finding of legal innocence. See United States v. Sparks, 67
F.3d 1145, 1151-53 (4th Cir. 1995); DeFusco, 949 F.2d at 120.
In addition, the other Moore factors do not weigh in Dogan's favor.
He waited three months to withdraw his plea. The district court found
that Dogan's first counsel, Assistant Public Defender Newberger, was
competent, and Dogan agreed that she spent a considerable amount
of time preparing his case. The Government asserted that its case
would be prejudiced by the withdrawal because the evidence in the
case would be stale and the two CI's who were to serve as witnesses
received threats. Finally, judicial resources would be wasted by going
through a trial considering Dogan's admitted distribution activities.
The court already conducted two days of evidentiary hearings, includ-
ing taking evidence on Dogan's innocence, and a full trial would be
duplicitous. We therefore find that Dogan did not meet his burden of
demonstrating a fair and just reason for the withdrawal. See Moore,
931 F.2d at 248.
Dogan also appeals the district court order revoking his three-year
term of supervised release. The Government filed a petition to revoke
Dogan's supervised release based upon the conviction for possession
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with intent to distribute cocaine base. The conviction resulted in a
violation of two terms of supervised release: not to commit another
crime, and not to possess, use, or distribute any controlled substance
without a physician's authorization. The district court held a hearing
on the petition on the same day as sentencing for the possession with
intent to distribute charge. Both parties chose to rely upon the evi-
dence adduced at the hearing on the guilty plea and made no further
arguments. Similarly, neither party makes any further argument on
the matter on appeal. Because we find that Dogan does not dispute the
facts adduced at the hearing, and only appeals the legal question of
whether the court erred in refusing to allow Dogan to withdraw his
plea, we affirm the order revoking Dogan's supervised release. See 18
U.S.C. § 3583(g) (mandating revocation of supervised release for a
defendant who possesses a controlled substance in violation of the
conditions of supervised release).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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