United States v. Yorby Mendoza

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4667
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
YORBY MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:03-cr-00014-RLV-DSC-4)
Submitted: June 17, 2011 Decided: July 8, 2011
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Matthew R. Segal, Assistant Federal Defender, Asheville,
North Carolina; Steven George Slawinski, Assistant Federal
Defender, Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Richard Lee Edwards, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yorby Mendoza pled guilty to one count of conspiracy
to possess with intent to distribute heroin and cocaine, in
violation of 21 U.S.C. §§ 841(a), 846 (2006). Following his
Rule 11 hearing, Mendoza fled the United States. Over three
years later, he was arrested in Colombia and extradited. Upon
his return, the district court held a sentencing hearing at
which Mendoza sought to withdraw his guilty plea. The district
court denied Mendoza’s motion and sentenced him to 159 months in
prison. Mendoza appeals. We affirm.
On appeal, Mendoza first contends that the district
court erred in denying his motion to withdraw his guilty plea.
The district court’s denial of a motion to withdraw a guilty
plea is reviewed for abuse of discretion. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). “[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). Instead, he must show that a “fair and just
reason” supports his request to withdraw his plea. Id.(internal quotation marks omitted). “[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).
2
In determining whether Mendoza has carried his burden,
the court considers six factors. Moore, 931 F.2d at 248.
Although all the factors in Moore must be given appropriate
weight, the key in determining whether a motion to withdraw
should be granted is whether the Rule 11 hearing was properly
conducted. United States v. Puckett, 61 F.3d 1092, 1099 (4th
Cir. 1995). This court closely scrutinizes the Rule 11 colloquy
and attaches a strong presumption that the plea is final and
binding if the Rule 11 proceeding was adequate. Lambey, 974
F.2d at 1394. Our review of the record leads us to conclude
that the district court did not abuse its discretion in denying
Mendoza’s motion to withdraw his guilty plea.
Mendoza also claims that the district court erred in
not allowing him to withdraw his guilty plea pursuant to Fed. R.
Crim. P. 11(d)(1). Specifically, Mendoza asserts that, because
his plea proceeding was conducted by a magistrate judge and
Mendoza moved to withdraw his plea in the district court before
the district court accepted the plea, his plea had not yet been
accepted and he was entitled to withdraw his plea “for any
reason or no reason.” Mendoza did not present this argument to
the district court and therefore, this claim is reviewed for
plain error. United States v. Benton, 523 F.3d 424, 429 (4th
Cir. 2008). Under this standard, this court may correct an
alleged error only if “[t]here [was] an error that is plain and
3
that affect[s] substantial rights.” United States v. Olano, 507
U.S. 725, 732 (1993) (internal quotation marks omitted). In
Benton, this court found that where a defendant has consented to
having his plea accepted by a magistrate judge, he may not later
seek to withdraw his plea pursuant to Rule 11. Benton, 523 F.3d
at 433. Because we conclude that Mendoza’s plea was valid, his
consent to enter that plea before the magistrate judge was
likewise valid, and forecloses this claim.
Accordingly, we affirm the judgment of the district
court. 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
4