United States v. Ashanti Henry , 592 F. App'x 201 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4692
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASHANTI RHAN HENRY, a/k/a A-1,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:12-cr-00024-JPJ-PMS-1)
Submitted: December 23, 2014 Decided: February 3, 2015
Before DUNCAN, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Zachary T. Lee, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ashanti Rhan Henry appeals the district court’s
judgment finding him guilty of conspiring to possess with the
intent to distribute 280 grams or more of cocaine base and five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846
(2012). Henry contends that the district court erred by
accepting his guilty plea when, he claims, it was not made
knowingly and voluntarily, and by denying his motion to withdraw
his guilty plea. We affirm.
The Government suggests that the appellate waiver in
the plea agreement precludes Henry’s appeal of the denial of his
motion to withdraw his guilty plea. However, a “waiver of
appeal rights in a plea agreement will not bar appellate review
of [a district court’s] denial of a motion to withdraw the
underlying guilty plea when the plea-withdrawal motion
incorporates a colorable claim that the plea agreement . . . is
tainted by constitutional error,” such as involuntariness or the
“lack of . . . effective assistance of counsel.” United States
v. Attar, 38 F.3d 727, 733 n.2 (4th Cir. 1994). Because we
conclude that Henry’s motion to withdraw his guilty plea
presented a colorable claim that his plea agreement was tainted
by involuntariness and ineffective assistance of counsel, the
appellate waiver does not preclude Henry’s appeal from the
motion’s denial.
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We review for abuse of discretion a district court’s
denial of a motion to withdraw a guilty plea. A defendant has
no absolute right to withdraw his guilty plea, and he bears the
burden of “show[ing] a fair and just reason” for doing so. Fed.
R. Crim. P. 11(d)(2)(B); see United States v. Nicholson, 676
F.3d 376, 383-84 (4th Cir. 2012).
This court has identified six factors that the
district court should evaluate in deciding whether to grant a
motion for withdrawal of a guilty plea. See United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991). The district court,
upon reviewing these factors, concluded that Henry had failed to
make the necessary showing. This ruling does not constitute an
abuse of the court’s discretion.
Accordingly, we affirm the judgment of the district
court. We grant Henry’s motion to file a pro se supplemental
brief, but have found no meritorious issues therein. We
dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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