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United States v. Jones , 1 F. App'x 165 ( 2001 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                             No. 00-4260
EMORY CLASH JONES,
Defendant-Appellant.

UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.
         No. 00-4291
CLEVON TYRONE JOHNSON, a/k/a Big
Ty,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-97-309-L)
Submitted: December 21, 2000
Decided: January 9, 2001
Before Before LUTTIG and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2                      UNITED STATES v. JONES
COUNSEL
David R. Solomon, Baltimore, Maryland; Arcangelo M. Tuminelli,
Baltimore, Maryland, for Appellants. Lynne A. Battaglia, United
States Attorney, Angela R. White, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Emory Clash Jones and Clevon Tyrone Johnson pled guilty to con-
spiracy to distribute cocaine hydrochloride and cocaine base, in viola-
tion of
    21 U.S.C. § 846
     (1994). They were sentenced to 188 months
and 210 months, respectively. On appeal, Jones claims that the district
court erred in denying his motion to withdraw his guilty plea. Johnson
maintains that the district court erred in increasing his base offense
level by two levels under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (1998) for possessing a dangerous weapon.
We first address Jones’ claim that the district court erred in deny-
ing his motion to withdraw his guilty plea. A defendant has no abso-
lute right to withdraw a plea of guilty. United States v. Ewing,
    957 F.2d 115
    , 118 (4th Cir. 1992). This Court reviews the district court’s
refusal to allow a defendant to withdraw a guilty plea under Fed. R.
Crim. P. 32 for abuse of discretion. United States v. Wilson,
    81 F.3d 1300
    , 1305 (4th Cir. 1996). Rule 32 of the Federal Rules of Criminal
Procedure permits withdrawal of a guilty plea if the "defendant shows
any fair and just reason." Fed. R. Crim. P. 32(e).
A trial court, when considering whether to allow a defendant to
withdraw a guilty plea, must apply the six-factor analysis announced
by this Court in United States v. Moore,
    931 F.2d 245
    , 248 (4th Cir.
UNITED STATES v. JONES                        3
1991). Under Moore, a district court considers: (1) whether the defen-
dant has offered credible evidence that his plea was not knowing and
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 had
close assistance of competent counsel; (5) whether withdrawal will
cause prejudice to the government; and (6) whether withdrawal will
inconvenience the court and waste judicial resources.
    Id.
     Although all
the factors in Moore must be given appropriate weight, the key to
determining whether a Rule 32(e) motion should be granted is
whether the Rule 11 hearing was properly conducted. United States
v. Puckett,
    61 F.3d 1092
    , 1099 (4th Cir. 1995). This Court closely
scrutinizes the Fed. R. Crim. P. 11 colloquy and attaches a strong pre-
sumption that the plea is final and binding if the Rule 11 proceeding
is adequate. United States v. Lambey,
    974 F.2d 1389
    , 1394 (4th Cir.
1992).
In this case, the district court heard argument on Jones’ motion and
concluded that Jones did not present a "fair and just reason" warrant-
ing withdrawal of his guilty plea. Having reviewed the transcript of
the hearing in light of Jones’ argument on appeal, we find no abuse
of discretion in the court’s denial of Jones’ motion.
With respect to Johnson, we have reviewed the district court’s
application of the two-level enhancement under USSG § 2D1.1(b)(1)
and USSG § 1B1.3 for possession of a dangerous weapon and find no
clear error. See United States v. Rusher,
    966 F.2d 868
    , 880 (4th Cir.
1992) (setting standard).
Accordingly, we affirm Jones’ and Johnson’s respective convic-
tions and sentences. 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