United States v. Johnson , 209 F. App'x 295 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4746
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAIN JOHNSON, a/k/a Jay,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-314)
Submitted: November 30, 2006 Decided: December 11, 2006
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermain Johnson appeals his conviction and 291-month
sentence imposed pursuant to his guilty plea to one count of
conspiracy to distribute crack cocaine, in violation of 21 U.S.C.
§ 846 (2000), and one count of possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1)(A) (2000). Johnson’s only contention on appeal
is that the district court erred in denying his motion to withdraw
his guilty plea.
We review the district court’s denial of a motion to
withdraw a guilty plea for an abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). Withdrawal
of a guilty plea is not a matter of right. Id. (citing United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991)). The defendant
bears the burden of showing a “fair and just reason” for the
withdrawal of his guilty plea. Fed. R. Crim. P. 11(d)(2)(B). “[A]
‘fair and just’ reason . . . is one that essentially
challenges. . . the fairness of the Rule 11 proceeding.” United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
An appropriately conducted Rule 11 proceeding, however, raises a
strong presumption that the guilty plea is final and binding. Id.Courts consider six factors in determining whether to
permit the withdrawal of a guilty plea:
(1) whether the defendant has offered credible evidence
that his plea was not knowing or otherwise involuntary;
- 2 -
(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.
Ubakanma, 215 F.3d at 424 (citing Moore, 931 F.2d at 248 (footnote
omitted)).
With these factors in mind, we have reviewed the record,
the district court’s decision, and the briefs of the parties on
appeal. We conclude that Johnson did not demonstrate a “fair and
just” reason for withdrawing his guilty plea, and that the district
court did not abuse its discretion in denying the motion.
Accordingly, we affirm Johnson’s conviction and sentence.
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
- 3 -