United States v. Grubb

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4072
ROBERT WAYNE GRUBB,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-00-15)
Submitted: December 19, 2001
Decided: January 15, 2002
Before WIDENER and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Mary E. Harkins, Rocky Mount, Virginia, for Appellant. Ruth E. Pla-
genhoef, United States Attorney, Donald R. Wolthuis, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
2 UNITED STATES v. GRUBB
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Robert Wayne Grubb pled guilty to conspiracy to possess with
intent to distribute cocaine base, in violation of 21 U.S.C.A. § 846(West 1999), possession of a firearm in connection with a drug traf-
ficking offense, in violation of 18 U.S.C.A. § 924(c) (West 2000)
(two counts), and possession of a firearm after having been convicted
of a felony in violation of 18 U.S.C.A. § 922(g) (West 2000). His
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues for
appeal, but addressing: (1) whether the district court fully complied
with Rule 11 in accepting Grubb’s guilty plea; (2) whether the district
court abused its discretion in denying Grubb’s motion to withdraw his
guilty plea; and (3) whether the district court properly applied the sen-
tencing guidelines. Grubb has filed a pro se supplemental brief.
Grubb first claims that the district court failed to comply with Fed.
R. Crim. P. 11 when it accepted his guilty plea. This Court generally
reviews the adequacy of a guilty plea de novo, but in the Rule 11 con-
text, violations are evaluated for harmless error. United States v.
Damon, 191 F.3d 561, 564 n.2 (4th Cir. 1999) (citing United States
v. Goins, 51 F.3d 400, 402 (4th Cir. 1995)). Any variance from the
Rule 11 requirements that does not affect the substantial rights of the
defendant is disregarded. Fed. R. Crim. P. 11(h); United States v.
DeFusco, 949 F.2d 114, 117 (4th Cir. 1991). We have reviewed the
transcript of the Rule 11 hearing and find that the district court fully
complied with Fed. R. Crim. P. 11 in accepting Grubb’s guilty plea.
Grubb next argues that the district court erred in denying his
motion to withdraw his guilty plea. A defendant has no absolute right
to withdraw a plea of guilty. United States v. Ewing, 957 F.2d 115,
118 (4th Cir. 1992). This court reviews the district court’s refusal to
allow a defendant to withdraw a guilty plea under Fed. R. Crim. P.
UNITED STATES v. GRUBB 3
32 for abuse of discretion. United States v. Wilson, 81 F.3d 1300,
1305 (4th Cir. 1996). Rule 32 of the Federal Rules of Criminal Proce-
dure permits withdrawal of a guilty plea if the "defendant shows any
fair and just reason." Fed. R. Crim. P. 32(e).
A trial court, when considering whether to allow a defendant to
withdraw a guilty plea, must apply the six-factor analysis announced
by this court in United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). Under Moore, a district court considers: (1) whether the defen-
dant has offered credible evidence that his plea was not knowing and
voluntary; (2) whether the defendant has credibly asserted his legal
innocence; (3) whether there has been a delay between the entry of
the plea and the filing of the motion; (4) whether the defendant had
close assistance of competent counsel; (5) whether withdrawal will
cause prejudice to the government; and (6) whether withdrawal will
inconvenience the court and waste judicial resources. Id. Although all
the factors in Moore must be given appropriate weight, the key to
determining whether a Rule 32(e) motion 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 Fed. R. Crim. P. 11 colloquy and attaches a strong pre-
sumption that the plea is final and binding if the Rule 11 proceeding
is adequate. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.
1992).
In his motion to withdraw his guilty plea, Grubb maintained that
his plea agreement was not properly explained to him and after read-
ing it several times after signing it, he realized there were provisions
within the agreement with which he did not agree. Grubb’s assertions
are belied by his representations at the plea hearing. Furthermore,
given the strong presumption given to a Rule 11 hearing, we find that
the district court did not abuse its discretion in denying Grubb’s
motion to withdraw his plea.
Grubb also asserts that the district court did not sentence him in
accordance with the sentencing guidelines. In his Anders brief, how-
ever, no error is assigned to the calculation of the guidelines. In any
event, Grubb waived his right to appeal the court’s application of the
sentencing guidelines. In his plea agreement, Grubb agreed that after
full and fair sentencing hearing, he would not then appeal sentencing
4 UNITED STATES v. GRUBB
guidelines factors or the Court’s application of the sentencing guide-
lines factors to the facts of his case. The plea agreement further pro-
vides that he knowingly and voluntarily waives any right to appeal
sentencing guidelines factors, and that he is voluntarily willing to rely
on the Court in sentencing him under the sentencing guidelines.
A review of Grubb’s Fed. R. Crim. P. 11 plea hearing shows Grubb
knowingly and voluntarily waived his right to appeal the sentence on
the ground asserted. His challenge to the district court’s application
of the sentencing guidelines is therefore waived. United States v. Wig-
gins, 905 F.2d 51, 53 (4th Cir. 1990). Hence, to the extent that Grubb
seeks to contest the district court’s application of the sentencing
guidelines, we dismiss the appeal.
In accordance with the requirements of Anders, we have reviewed
the record for potential error and have found none. We further find
no merit to Grubb’s claims raised in his pro se supplemental brief.
Therefore, we affirm Grubb’s conviction and sentence. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move this court for
leave to withdraw from further representation. Counsel’s motion must
state that a copy thereof was served on the client. 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 in the decisional process.
AFFIRMED IN PART; DISMISSED IN PART