United States v. Strain

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4685
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY L. STRAIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-02-623)
Submitted: May 28, 2004 Decided: November 19, 2004
Before WILKINSON, WILLIAMS, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David P. McCann, Charleston, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Rhett DeHart,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary L. Strain pled guilty to one count of receiving
child pornography through a computer, in violation of 18 U.S.C.
§ 2252A(a)(2) (2000). He was sentenced to twenty-seven months in
prison. On appeal, Strain argues that the district court
erroneously denied his motion to suppress evidence seized from his
home and business pursuant to two search warrants and erroneously
denied a subsequent motion to reopen the suppression hearing. He
further argues that the district court erroneously denied his
motion to withdraw his guilty plea. We affirm.
This court reviews the district court’s legal conclusions
regarding a motion to suppress de novo and reviews factual findings
for clear error. United States v. Kitchens, 114 F.3d 29, 31 (4th
Cir. 1997). To establish probable cause for a search warrant, the
information presented in the supporting affidavit must lead a
person of “‘reasonable caution’” to conclude that evidence of a
crime will be discovered at the location to be searched. Texas v.
Brown, 460 U.S. 730, 742 (1983) (quoting Carroll v. United States,
267 U.S. 132, 162 (1925)). If a search warrant affidavit contains
intentionally or recklessly false information, no relief is
available if, discounting this information, there is still enough
material to support a probable cause finding. Franks v. Delaware,
438 U.S. 154, 171-72 (1978).
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Guided by these principles, we have thoroughly reviewed
the parties’ submissions and conclude that the district court did
not err in denying Strain’s motion to suppress. See United
States v. Froman, 355 F.3d 882, 889-91 (5th Cir. 2004). We further
note that the district court properly denied Strain’s motion to
reopen the suppression hearing because, when the motion was filed,
Strain had already pled guilty.
The district court’s denial of a motion to withdraw a
guilty plea is reviewed for abuse of discretion. United States v.
Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). A defendant who seeks
to withdraw his guilty plea before sentencing must demonstrate a
“fair and just reason” for the withdrawal. Fed. R. Crim. P. 32(e).
When confronted with a motion to withdraw, the district court must
consider: (1) whether the defendant has offered credible evidence
that his plea was not knowing or 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 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. United States v. Moore, 931 F.2d
245, 248 (4th Cir. 1991).
We have carefully reviewed Strain’s arguments on this
issue and conclude that the Moore factors do not weigh in his
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favor. Thus, the district court did not abuse its discretion in
denying Strain’s motion to withdraw his guilty plea. For the
foregoing reasons, we affirm Strain’s conviction. 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
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