United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4913
CARLTON JOHNSON, a/k/a Valentine
Contreras,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CR-99-6-BO)
Submitted: September 18, 2001
Decided: October 9, 2001
Before TRAXLER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Kimberly A. Moore, Assis-
tant United States Attorney, Nancy W. Herrera, Third-Year Law Stu-
dent, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Carlton Johnson appeals the denial of his motion to withdraw his
guilty plea. We review the district court’s denial of a motion to with-
draw a guilty plea for abuse of discretion. United States v. Craig, 985
F.2d 175, 178 (4th Cir. 1993). For the reasons stated below, we affirm
the judgment of the district court.
Johnson bore the burden of demonstrating a "fair and just reason"
for withdrawal pursuant to Fed. R. Crim. P. 32(e). We have articu-
lated six factors for determining whether a defendant has met his bur-
den: (1) whether the defendant has laid out credible evidence that his
plea was not knowing and voluntary, (2) whether the defendant has
credibly asserted his innocence, (3) whether there has been a delay
between the entering of the plea and the filing of the motion, (4)
whether the defendant has had close assistance of competent counsel,
(5) whether withdrawal will prejudice the government, and (6)
whether a withdrawal will inconvenience the court and waste judicial
resources. See United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991).
Johnson only contests the district court’s decision on the basis of
the fourth factor. He asserts he lacked close assistance of competent
counsel, and the district court failed to make an adequate determina-
tion as to the validity of his contentions. In his oral motion to with-
draw his plea, Johnson alleged his attorney operated under conflicting
interests, and rendered erroneous advice regarding Johnson’s pending
sentence. Making an "inescapably impressionistic judgment," the dis-
trict court concluded that Johnson lacked a fair and just reason for
withdrawal, United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir.
1995). Nonetheless, despite finding no conflict of interest, the court
permitted Johnson to substitute new counsel. Significantly, after
retention of new counsel and after learning of the precise sentencing
UNITED STATES v. JOHNSON 3
range he faced, Johnson ultimately abandoned his request to withdraw
his guilty plea. Consequently, Johnson cannot credibly claim that he
would have proceeded to trial but for the allegedly ineffective assis-
tance of his original counsel. See United States v. Lambey, 974 F.2d
1389, 1394 (4th Cir. 1992) (discussing dependance of success of
fourth Moore factor on establishment that but for counsel’s errors,
defendant would have proceeded to trial).
Moreover, we have specifically held that an allegation that coun-
sel’s predictions caused a defendant to believe he would receive a
shorter sentence than that imposed is not a "fair and just" reason for
withdrawing the plea when the court corrects or clarifies at the Rule
11 hearing the range of punishment to which the defendant is subject.
See id. at 1395. In Lambey, the defendant received a sentence three
times greater than that estimated by counsel, a quantitative error simi-
lar to that alleged in this case. Yet as in Lambey, the district court
informed Johnson that he could receive a sentence up to life imprison-
ment, and Johnson indicated that he understood that possibility. Thus,
Johnson was fully aware of the "potential vagaries of sentencing." Id.Accordingly, we affirm Johnson’s sentence. We dispense with oral
argument, because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED