United States v. Charles Bell , 585 F. App'x 72 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4256
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES HENRY BELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00128-WO-1)
Submitted: October 21, 2014 Decided: October 23, 2014
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Ripley E. Rand, United States
Attorney, JoAnna G. McFadden, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Henry Bell pled guilty, pursuant to a written
plea agreement, to being a felon in possession of a firearm, 18
U.S.C. § 922(g) (2012), and was sentenced to 51 months’
imprisonment. Bell appeals, challenging the district court’s
denial of his motion to withdraw his guilty plea and claiming
ineffective assistance of counsel. Finding no error, we affirm.
We review for abuse of discretion the district court’s
denial of a defendant’s motion to withdraw his guilty plea.
United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).
Before sentencing, a defendant may withdraw his guilty plea only
by demonstrating “‘a fair and just reason’” for withdrawal.
United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003)
(quoting Fed. R. Crim. P. 11(d)(2)(B)). “[A] ‘fair and just’
reason for withdrawing a plea 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).
The defendant bears the “heavy burden” of demonstrating the
existence of such a reason. United States v. Thompson–Riviere,
561 F.3d 345, 348 (4th Cir. 2009) (internal quotation marks
omitted).
A properly conducted Rule 11 colloquy “raise[s] a
strong presumption that the plea is final and binding,” and
therefore “leaves a defendant with a very limited basis upon
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which to have his plea withdrawn.” Bowman, 348 F.3d at 414(internal quotation marks omitted). Moreover, a defendant’s
sworn declarations during the plea colloquy “carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74
(1977).
We have articulated a nonexclusive list of six factors
to be considered in determining whether to permit withdrawal of
a guilty plea. United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991). These factors include: (1) whether the defendant
has offered credible evidence that his plea was unknowing or
involuntary; (2) whether the defendant credibly asserted his
legal innocence; (3) the extent of delay between entering the
plea and filing the motion to withdraw the plea; (4) whether the
defendant enjoyed “the close assistance of competent counsel”;
(5) whether withdrawal would prejudice the government; and (6)
whether withdrawal would “inconvenience the court and waste
judicial resources.” Nicholson, 676 F.3d at 384.
Applying these factors, and upon careful review of the
record, we find no abuse of discretion in the district court’s
conclusion that Bell failed to meet his burden to demonstrate a
fair and just reason for withdrawal.
We decline to reach Bell’s claims of ineffective
assistance of counsel. Unless an attorney’s ineffectiveness
conclusively appears on the face of the record, ineffective
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assistance claims are not generally addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead, such claims should be raised in a motion brought
pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because there
is no conclusive evidence of ineffective assistance of counsel
on the face of the record, we conclude that these claims should
be raised, if at all, in a § 2255 motion.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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