Document Info

DocketNumber: 10-4289

Judges: Shedd, Agee, Keenan

Filed Date: 4/22/2011

Status: Non-Precedential

Modified Date: 11/5/2024

  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4289
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    TRACY MARK ANTHONY TUCKER,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Richmond.  Henry E. Hudson, District
    Judge. (3:09-cr-00298-HEH-1)
    Submitted:   March 28, 2011                 Decided:   April 22, 2011
    Before SHEDD, AGEE, and KEENAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
    Grady, Assistant Federal Public Defender, Patrick L. Bryant,
    Research   and  Writing   Attorney,  Richmond,   Virginia,  for
    Appellant. Neil H. MacBride, United States Attorney, Michael R.
    Gill, Assistant United States Attorney, Richmond, Virginia, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Tracy Tucker was charged with possession of a firearm
    and ammunition by a convicted felon, in violation of 
    18 U.S.C. § 922
    (g)(1) (2006).        After the district court denied Tucker’s
    motion to suppress evidence, Tucker pled guilty.                Approximately
    two and one-half months later, he moved to withdraw his plea.
    Following   a   hearing,     the   district    court   denied    the   motion.
    After   another   hearing,     the   court    denied   Tucker’s    motion   to
    reconsider the denial of the motion to withdraw.                  Tucker was
    sentenced to sixty months in prison.             He now appeals, raising
    two issues.     We affirm.
    I
    Tucker first contends that the district court erred
    when it denied his motion to withdraw his guilty plea.                      We
    review the denial of the motion for abuse of discretion.                United
    States v. Dyess, 
    478 F.3d 224
    , 237 (4th Cir. 2007).                Withdrawal
    of a guilty plea is not a matter of right. United States v.
    Ubakanma, 
    215 F.3d 421
    , 424 (4th Cir. 2000). The defendant bears
    the burden of showing a “fair and just reason” for withdrawing
    his plea.     Fed. R. Crim. P. 11(d)(2)(B).            To determine whether
    the defendant has met his burden, courts look to six factors:
    (1)   whether the  defendant has   offered credible
    evidence that his plea was not knowing or otherwise
    involuntary; (2) whether the defendant has credibly
    2
    asserted his legal innocence; (3) whether there has
    been a delay between entry of the plea and filing of
    the motion; (4) whether the defendant has had close
    assistance of counsel; (5) whether withdrawal will
    cause prejudice to the government; and (6) whether
    withdrawal will inconvenience the court and waste
    judicial resources.
    Ubakanma, 
    215 F.3d at 424
    .
    After carefully reviewing the record, we agree with
    the district court that Tucker did not meet his burden.         First,
    because there was substantial compliance with Fed. R. Civ. P.
    11, * there is a strong presumption that Tucker’s plea is valid.
    See United States v. Lambey, 
    974 F.2d 1389
    , 1394 (4th Cir. 1992)
    (“[A]n appropriately conducted Rule 11 proceeding . . . raise[s]
    a strong presumption that the plea is final and binding.”).
    Additionally, the six factors identified in Ubakanma
    weigh heavily against Tucker.     He repeatedly assured the court
    at the Rule 11 proceeding that he was fully satisfied with his
    counsel’s representation, he wished to plead guilty because he
    was guilty, no one had forced or threatened him to plead guilty,
    and he was pleading guilty of his own free will and not because
    of   any   outside   pressure.   His   unsupported   claim   that   his
    *
    The court did not inform Tucker, in accordance with Rule
    11(b)(1)(A), that the Government had the right to prosecute
    Tucker for any perjury committed at the hearing.    This was the
    only flaw in the proceedings, which otherwise complied with Rule
    11.
    3
    attorney or the court pressured him to plead guilty and that he
    did not understand the Rule 11 hearing is at odds with his
    solemn     declarations,       under      oath,    to       the    contrary      at    that
    hearing.      See Blackledge v. Allison, 
    434 U.S. 63
    , 64 (1977)
    (statements       at   plea    colloquy    “carry       a   strong    presumption        of
    verity”).
    Further, Tucker has never credibly asserted his legal
    innocence.     Indeed, it would be almost impossible for him to do
    so, given his incriminating statements at the time the search
    warrant was executed, his admission of guilt at the Rule 11
    hearing,    and    his   statements       to     his    probation     officer         during
    preparation of the presentence investigation report.                            The more-
    than-two-month delay in moving to withdraw the plea also weighs
    against Tucker.
    Despite      his     claims     to    the       contrary,     the     record,
    including    Tucker’s     sworn    statements          at    the   Rule    11    hearing,
    shows that he worked closely with his attorney.                           Additionally,
    as the district court stated, the court’s resources would be
    stretched if the matter went to trial.
    Five of the six factors thus weigh against permitting
    withdrawal of the plea.             The sixth factor — prejudice to the
    Government — weighs in Tucker’s favor: the Government candidly
    admitted that it would not be unduly prejudiced if the case were
    4
    tried.      We conclude that the district court did not abuse its
    discretion in denying the motion to withdraw the guilty plea.
    II
    We      next     consider    Tucker’s       argument      that       his    sixty-
    month    sentence       is     unreasonable       because      it     is    greater       than
    necessary to accomplish the purposes of sentencing.                               According
    to Tucker’s presentence investigation report (PSR), his offense
    level    was      20.          See   U.S.        Sentencing         Guidelines          Manual
    § 2K2.1(a)(4)(A)           (2009).       Two      levels       were       subtracted      for
    acceptance     of    responsibility.             See    USSG   § 3E1.1.           His    total
    offense level was 18, his criminal history category was III, and
    his advisory Guidelines range was 33-41 months.
    At sentencing, Tucker had no objections to the report.
    The United States argued that, in light of Tucker’s attempts to
    withdraw    his      guilty     plea,    the     adjustment         for    acceptance      of
    responsibility was improper.                The court agreed that Tucker was
    ineligible     for      the    two-level    reduction.          Therefore,         Tucker’s
    offense level was 20, and his advisory Guidelines range rose to
    41-51 months.
    The      court     determined       after    argument         that    an    upward
    departure was warranted because Tucker’s criminal history score
    significantly       under-represented           his    criminal       background.          The
    court    observed       that    Tucker   had      received      no    criminal         history
    5
    points for offenses, including use of a firearm and attempted
    murder,    committed       when    he    was    a    juvenile.        Nor    did        Tucker’s
    criminal    history     score      reflect      that      his       parole       from    a    1990
    murder     conviction        was    revoked         in    1994.         The        court       was
    particularly        concerned       by    Tucker’s          pattern         of     committing
    offenses involving firearms.               The court determined that a one-
    level    upward     departure      to    criminal        history       category          IV    was
    appropriate.        Accordingly,         Tucker’s        advisory      Guidelines            range
    became 51-61 months.              The court stated that a sentence within
    this range would be adequate but not longer than necessary to
    satisfy the purposes of sentencing.
    Following     argument,     the      court      imposed       a    sixty-month
    sentence. The court stated that it had considered the Guidelines
    and the 
    18 U.S.C. § 3553
    (a) (2006) factors.                          The court referred
    to Tucker’s past involvement in violent behavior and stated that
    the sentence selected would promote respect for the law, protect
    the community, and deter future criminal behavior.
    “[A]ny sentence, within or outside of the Guidelines
    range,    as    a   result    of    a    departure        or    a    variance,          must    be
    reviewed by appellate courts for reasonableness pursuant to an
    abuse of discretion standard.”                  United States v. Diosdado-Star,
    
    630 F.3d 359
    , 365 (4th Cir. 2011); see also Gall v. United
    States, 
    552 U.S. 38
    , 46 (2007); Rita v. United States, 
    551 U.S. 338
    , 354-55 (2007).           In conducting our review, we first examine
    6
    the   sentence         for     “significant      procedural       error,”     including
    “failing to calculate (or improperly calculating) the Guidelines
    range, treating the Guidelines as mandatory, failing to consider
    the § 3553(a) factors, selecting a sentence based on clearly
    erroneous facts, or failing to adequately explain the chosen
    sentence—including            an   explanation       for   any   deviation    from    the
    Guidelines range.”             Gall, 
    552 U.S. at 51
    .             With respect to the
    explanation       of    the    sentence,    we    have     stated,    “Regardless      of
    whether the district court imposes an above, below, or within-
    Guidelines        sentence,         it   must     place      on      the    record     an
    individualized assessment based on the particular facts of the
    case.”    United States v. Carter, 
    564 F.3d 325
    , 330 (4th Cir.
    2009) (internal quotation marks omitted).
    If    we        conclude    that    a     sentence      is    procedurally
    reasonable, we then consider the substantive reasonableness of
    the sentence.            United States v. Lynn, 
    592 F.3d 572
    , 575 (4th
    Cir. 2010).        At this stage, we “take into account the totality
    of the circumstances, including the extent of any variance from
    the Guidelines range.”              Gall, 
    552 U.S. at 51
    .            “[T]he method by
    which the district court deviates from the Guidelines range does
    not alter (1) the review in which the courts of appeals must
    engage,     or    (2)        the   justification       the   district       court    must
    provide.”     Diosdado-Star, 
    630 F.3d at 365
    .
    7
    We     hold   that     Tucker’s      sixty-month   sentence    is
    procedurally and substantively reasonable.            The district court
    accurately    calculated   Tucker’s    advisory    Guidelines   range,   and
    the court considered both the § 3553(a) sentencing factors and
    the   parties’   positions     on   sentencing.      Further,   the   court
    adequately explained its reasons for the departure sentence.
    III
    We accordingly affirm.        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
    8