United States v. Mosley , 336 F. App'x 368 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4689
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY PERNELL MOSLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:07-cr-00302-LMB-1)
Submitted: June 22, 2009 Decided: July 9, 2009
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank Salvato, LAW OFFICES OF FRANK SALVATO, Alexandria,
Virginia, for Appellant. Dana J. Boente, Acting United States
Attorney, Daniel J. Grooms, Marla B. Tusk, Assistant United
States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeremy Pernell Mosley pled guilty to one count of
conspiracy to distribute fifty grams or more of crack cocaine,
and one count of possession with intent to distribute fifty
grams or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). The district court sentenced Mosley
to 168 months of imprisonment, and he timely appealed. On
appeal, Mosley argues that the district court erred in denying
his motion to withdraw his guilty plea, his motion to dismiss
the indictment for lack of jurisdiction, and his motion to
transfer the case. We affirm.
A district court’s denial of a motion to withdraw a
guilty plea is reviewed for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). The
defendant has the burden of demonstrating “a fair and just
reason” for withdrawal. Fed. R. Crim. P. 32(e); Ubakanma, 215
F.3d at 424. A “fair and just reason” is one that challenges
the fairness of the guilty plea colloquy conducted pursuant to
Rule 11 of the Federal Rules of Criminal Procedure. United
States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).
In determining whether the trial court abused its
discretion in denying a motion to withdraw a guilty plea, six
factors are considered:
2
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether 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).
Although all the factors in Moore must be given appropriate
weight, the key to determining whether to grant a motion to
withdraw a guilty plea is whether the Rule 11 hearing was
properly conducted. United States v. Faris, 388 F.3d 452, 456
(4th Cir. 2004). This court closely scrutinizes the Rule 11
colloquy. An adequate Rule 11 proceeding creates a strong
presumption that the guilty plea is binding. United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). Our review of the
record leads us to conclude that the district court properly
applied the Moore factors and did not abuse its discretion in
denying Mosley’s motion to withdraw his guilty plea.
Mosley also argues that the district court erred in
denying his motion to dismiss the indictment for lack of
jurisdiction. Mosley’s argument is squarely foreclosed by
Circuit precedent. United States v. Leshuk, 65 F.3d 1105, 1111-
12 (4th Cir. 1995).
3
Mosley next argues that the district court erred in
denying his motion to transfer his case to the Western District
of Virginia because venue was improper in the Eastern District.
He asserts that the conspiracy charged in Count One of the
indictment occurred in the Western District. The venue statute
generally applicable to criminal cases provides that “[e]xcept
as otherwise expressly provided by enactment of Congress, any
offense against the United States begun in one district and
completed in another, or committed in more than one district,
may be inquired of and prosecuted in any district in which such
offense was begun, continued, or completed.” 18 U.S.C.
§ 3237(a) (2006). A conspiracy may be prosecuted in any
district in which an act in furtherance of the conspiracy was
committed. United States v. Al-Talib, 55 F.3d 923, 928-29 (4th
Cir. 1995).
In this case, the AUSA stated in the factual basis,
without contradiction by Mosley, that several acts in
furtherance of the conspiracy occurred in the Eastern District
of Virginia. The district court did not err in concluding that
venue was proper in the Eastern District. To the extent
Mosley’s argument can be construed as asserting that the
district court should have transferred the case for the
convenience of the parties under Fed. R. Crim. P. 21(b), we find
4
the district court did not abuse its discretion. See United
States v. Smith, 452 F.3d 323, 336 n.1 (4th Cir. 2006).
Finally, Mosley asserts a claim of ineffective
assistance of counsel, stating that “this factual issue is
probative as to the withdrawal of the guilty plea factors.”
Claims of ineffective assistance of counsel are generally not
cognizable on direct appeal. See United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claim in a
28 U.S.C.A. § 2255 (West Supp. 2009) motion. See id.; United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception
exists when the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); King, 119 F.3d at 295. Our review reveals that the
record does not demonstrate that counsel performed in a
deficient manner. We therefore decline to consider this claim.
Accordingly, we affirm Mosley’s convictions. 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
5