United States v. Kevin Scott

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4320
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN ALEXANDER SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:09-cr-00581-JFM-1)
Submitted: November 20, 2012 Decided: November 30, 2012
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Raymond J. Rigat, Washington, DC, for Appellant. Rod J.
Rosenstein, United States Attorney, Michael C. Hanlon, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Alexander Scott appeals his conviction following
a guilty plea to Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951 (2006), and use of a firearm during a crime of violence,
in violation of 18 U.S.C. § 924(c) (2006). On appeal, Scott
argues that the district court abused its discretion in denying
his motion to withdraw his guilty plea. We affirm.
In his plea agreement, Scott agreed to waive the right
to appeal his conviction and “whatever sentence is imposed,”
reserving the right to appeal a sentence in excess of 300
months’ imprisonment. A defendant may, in a valid plea
agreement, waive the right to appeal under 18 U.S.C. § 3742(2006). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). An appellate waiver must be “the result of a knowing and
intelligent decision to forgo the right to appeal.” United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(internal quotation marks and citation omitted). However, an
appellate waiver in a plea agreement will not bar appellate
review of a district court’s denial of a motion to withdraw the
underlying guilty plea when the motion contains a “colorable
claim” that the plea agreement “is tainted by constitutional
error,” such as involuntariness or the lack of the effective
assistance of counsel. United States v. Attar, 38 F.3d 727, 733
n.2 (4th Cir. 1994). In his motion to withdraw his guilty plea,
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Scott argued that his plea was not knowing and voluntary because
his trial counsel withheld germane information from him during
the plea process. As Scott’s motion presents a “colorable”
claim that his plea agreement was tainted by constitutional
error, the waiver provision does not preclude an appeal of the
denial of his motion to withdraw his guilty plea.
We review the district court’s denial of a defendant’s
motion to withdraw his guilty plea for an abuse of discretion.
United States v. Battle, 499 F.3d 315, 319-20 (4th Cir. 2007).
“[A] defendant does not have an absolute right to withdraw a
guilty plea, even before sentencing.” United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). To withdraw a guilty plea
after entry of the plea but before sentencing, a defendant bears
the burden of showing a “fair and just reason for the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); Moore, 931 F.2d at
248. “[A] ‘fair and just reason’ for withdrawing a plea 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).
In determining whether a defendant has established a
“fair and just reason” for withdrawal, courts consider six
factors. Moore, 931 F.2d at 248. The first, second, and fourth
factors are the most significant, as they “speak most
straightforwardly to the question whether the movant has a fair
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and just reason to upset settled systemic expectations by
withdrawing [his guilty] plea.” United States v. Sparks, 67
F.3d 1145, 1154 (4th Cir. 1995). Further, an appropriately
conducted Rule 11 proceeding “raise[s] a strong presumption that
the plea is final and binding.” Lambey, 974 F.2d at 1394.
We conclude that the district court did not abuse its
discretion in denying Scott’s motion to withdraw his guilty
plea. Contrary to Scott’s assertions on appeal, his trial
counsel did not withhold germane information from him during the
plea negotiation process, as the DNA report prepared by the
defense’s expert witness was not available at the time Scott
pled guilty. Moreover, although Scott places significant
emphasis on the DNA report, the report does not establish
Scott’s innocence. To the contrary, the report confirmed the
findings of the Government’s expert witness. In addition, the
trial court conducted a thorough Fed. R. Crim. P. plea colloquy
with Scott prior to accepting his guilty plea.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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