United States v. Adrian Parker , 539 F. App'x 228 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4057
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ADRIAN PARKER, a/k/a Great One, a/k/a Rock,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:10-cr-00087-FDW-4)
Submitted: September 10, 2013 Decided: September 13, 2013
Before DUNCAN, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Haakon Thorsen, THORSEN LAW OFFICES, Charlotte, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney,
William M. Miller, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adrian Parker pleaded guilty to conspiracy to possess
with intent to distribute cocaine base, in violation of 21
U.S.C. § 846 (2006). Prior to the sentencing, Parker sought to
withdraw his guilty plea based on a change in the law announced
by this court in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc), which reduced the statutory mandatory
minimum applicable to Parker’s conviction. The district court
denied Parker’s motion. The court sentenced Parker to 210
months of imprisonment and he now appeals. Finding no error, we
affirm.
On appeal, Parker argues that the district court
abused its discretion in denying his motion to withdraw his
guilty plea. * We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United
States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). A defendant
seeking to withdraw his guilty plea bears the burden of
demonstrating “‘a fair and just reason’” for withdrawal of his
plea. United States v. Faris, 388 F.3d 452, 456 (4th Cir. 2004)
(citing Fed. R. Crim. P. 11(d)(2)(B)). In deciding whether to
*
Parker also argues that the waiver of appellate rights
contained in the plea agreement should not foreclose his appeal.
The Government, however, has not sought enforcement of the
appellate waiver so we decline to consider whether Parker’s
appeal would be foreclosed by the waiver.
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permit a defendant to withdraw his guilty plea, a district court
should consider:
(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 the defendant has
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.
Faris, 388 F.3d at 456 (citations omitted).
We have thoroughly reviewed the record and the
relevant legal authorities and conclude that the district court
did not abuse its discretion. The court properly considered the
above-listed factors and did not err in denying Parker’s motion
to withdraw his guilty plea.
Accordingly, we affirm the judgment of the district
court. 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 in the decisional
process.
AFFIRMED
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