United States v. Whitted

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4025
TRACEY SYLVESTER WHITTED,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Richard C. Erwin, Senior District Judge.
(CR-96-91)
Submitted: July 1, 1997
Decided: July 18, 1997
Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Terry G. Harn, Chapel Hill, North Carolina; Donald R. Dickerson,
Hillsborough, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Lisa B. Boggs, Assistant United States Attor-
ney, Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Tracey Sylvester Whitted pled guilty to conspiracy to
distribute cocaine and crack cocaine and to possess cocaine with
intent to manufacture crack in violation of 21 U.S.C. § 846 (1994).
On appeal, Whitted challenges whether the district court erred by
accepting his guilty plea prior to determining whether a factual basis
existed to support the plea and whether he should have been allowed
to withdraw his plea prior to sentencing. Finding no reversible error,
we affirm.
Whitted was involved in a large drug ring in North Carolina which
was eventually broken as the result of an undercover sting operation.
After the jury was selected in the joint trial of himself and a co-
defendant ("Swepson"), Whitted offered to plead guilty to the con-
spiracy charge pursuant to a written plea agreement. The plea agree-
ment included a provision that Whitted testify truthfully at Swepson's
trial. During the Rule 111 colloquy, the district court advised Whitted
of the elements of the offense, the rights he was waiving, and the
potential maximum punishments. Whitted stated that he understood
the court's advice and admitted that he was guilty of the offense. The
district court accepted the guilty plea, but reserved entering final
judgment until after a factual basis to support the plea was presented,
which was expected to occur later that day during Swepson's trial.
However, Whitted refused to testify, and a hearing on the factual
basis was deferred until sentencing.
Shortly before sentencing and approximately three months after
pleading guilty, Whitted filed a motion to withdraw his plea. After a
hearing, the district court denied Whitted's motion and allowed the
Government to present the factual basis. The district court found that
the evidence was sufficient to support the plea, entered judgment, and
sentenced Whitted.
We reject Whitted's assertion that the district court erred by accept-
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1 Fed. R. Crim. P. 11.
2
ing his plea without the Government first presenting an adequate fac-
tual basis. Rule 11(f) states that "[n]otwithstanding the acceptance of
a plea of guilty, the court should not enter a judgment upon such plea
without making such inquiry as shall satisfy it that there is a factual
basis for the plea." We find that the unambiguous language of this
Rule contemplates a situation such as the one here, where the plea is
accepted prior to the presentation of the factual basis. The district
court properly deferred entering judgment until after the factual basis,
which we find is all that is required under Rule 11(f). Moreover, this
court recently approved of this procedure in United States v. Mitchell,
104 F.3d 649, 651-52 (4th Cir. 1997).2
Contrary to Whitted's assertion, he did not have an absolute right
to withdraw his guilty plea.3 To support his motion to withdraw, a
defendant bears the heavy burden of showing that there is a "fair and
just" reason, and the decision to grant or deny the request lies within
the sound discretion of the district court. Moore, 931 F.2d at 248.
In the present case, we find that Whitted fails to meet this burden.
Whitted claims that he did not understand the buyer/seller defense and
that he was factually innocent because he was improperly identified
as being at one of the undercover purchases. However, the record
shows that he was fully advised of the consequences of his plea and
possible defenses and knowingly and voluntarily pled guilty.4 We also
reject Whitted's claim of innocence. The record shows that the only
"misidentification" concerned Whitted's hairstyle. The witness in
question positively identified Whitted as the person who sold drugs
to him on the specific occasion at issue, and several other witnesses
testified that they purchased drugs from Whitted as well.
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2 The court also notes that Whitted caused the delay in presenting the
factual basis by refusing to testify at Swepson's trial as agreed. We fur-
ther find that the factual basis presented by the Government amply sup-
ported the plea.
3 See Fed. R. Crim. P. 32(d); United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991).
4 We note that during the hearing on Whitted's motion to withdraw his
guilty plea, his original defense counsel testified that he explained the
difference between conspiracy and a buyer/seller relationship and that
Whitted understood.
3
We therefore affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid the decisional process.
AFFIRMED
4