United States v. Tony Bowen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4156
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONY CURTIS BOWEN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00020-JAB-1)
Submitted: September 9, 2015 Decided: September 11, 2015
Before SHEDD, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sharon Leigh Smith, UNTI & SMITH, Raleigh, North Carolina, for
Appellant. Sandra Jane Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Curtis Bowen pled guilty to distributing cocaine base
and possessing a firearm by a convicted felon. He received a
51-month sentence. Counsel has filed an Anders v. California,
386 U.S. 738 (1967) brief, certifying that there are no
meritorious issues, but questioning whether the district court
abused its discretion in denying Bowen’s motion to withdraw his
guilty plea. Finding no error, we affirm.
“A defendant has no absolute right to withdraw a guilty
plea.” United States v. Bowman, 348 F.3d 408, 413 (4th Cir.
2003) (internal quotation marks omitted). Rather, once the
district court has accepted a guilty plea, it is within the
court’s discretion whether to grant a motion to withdraw it
based on the defendant’s showing of a “fair and just reason.”
Fed. R. Crim. P. 11(d)(2)(B); United States v. Battle, 499 F.3d
315, 319 (4th Cir. 2007). When considering whether to allow a
defendant to withdraw a guilty plea, the trial court must
consider six factors:
(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
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
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United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991)
(citations omitted). Although all of the Moore factors should
be considered, the first, second, and fourth are the most
important factors in making the determination of whether to
allow withdrawal of the plea. United States v. Sparks, 67 F.3d
1145, 1154 (4th Cir. 1995).
We have reviewed the record on appeal and the parties’
arguments, and we conclude that the district court did not err
in determining that Bowen’s plea was knowingly and voluntarily
entered, that he had close assistance of competent counsel, and
that he failed to make a credible showing of legal innocence.
We conclude that the district court properly weighed the Moore
factors and did not abuse its discretion in denying Bowen’s
motion to withdraw his guilty plea. See United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (reviewing Moore
factors and applying abuse of discretion standard).
Accordingly, we affirm the district court’s denial of the motion
to withdraw the plea.
In accordance with Anders, we have reviewed Bowen’s pro se
claims and the entire record in this case and have found no
meritorious issues for appeal. We therefore affirm Bowen’s
conviction and sentence. This court requires that counsel
inform Bowen, in writing, of the right to petition the Supreme
Court of the United States for further review. If Bowen
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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 representation. Counsel’s
motion must state that a copy thereof was served on Bowen.
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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