United States v. Massenburg , 383 F. App'x 371 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK LAMONT MASSENBURG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-cr-00092-BO-1)
Submitted: May 17, 2010 Decided: June 18, 2010
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Lamont Massenburg timely appeals from the 363-
month sentence imposed following his guilty plea to one count of
conspiracy to commit armed bank robbery, in violation of 18
U.S.C. § 371 (2006) (Count 1), one count of armed bank robbery
and aiding and abetting same, in violation of 18 U.S.C. §§ 2,
2113(a), (d) (2006) (Count 2), one count of carrying a firearm
during a crime of violence and aiding and abetting same, in
violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (2006) (Count 3), and
one count of escape and aiding and abetting same, in violation
of 18 U.S.C. §§ 2, 751 (2006) (Count 4). Counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the district court properly denied
Massenburg’s motion to dismiss Count 3 and motion for new
counsel, and whether the district court erred in overruling
Massenburg’s objection to the two-level obstruction of justice
enhancement. Massenburg has not filed a pro se brief, though he
was informed of his right to do so. However, Massenburg
recently filed a notice of supplemental authorities, pursuant to
Federal Rule of Appellate Procedure 28(j), arguing that his
sentence on Count 3 is unconstitutional. Finding no reversible
error, we affirm.
Massenburg first questions whether the district court
properly denied his pro se motion to dismiss Count 3 after
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entering his guilty plea. The district court properly treated
Massenburg’s motion as one to withdraw his guilty plea. A
defendant may be permitted to withdraw his guilty plea prior to
sentencing if he “can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d). However, because
there is no “absolute right to withdraw a guilty plea, . . . the
district court has discretion to decide whether a fair and just
reason exists.” United States v. Bowman, 348 F.3d 408, 413 (4th
Cir. 2003) (internal quotation marks omitted). Thus, we review
the 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).
We consider the following factors in determining
whether a defendant should be permitted to withdraw his guilty
plea:
(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); see
also Bowman, 348 F.3d at 414. However, “[t]he most important
consideration in resolving a motion to withdraw a guilty plea is
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an evaluation of the Rule 11 colloquy at which the plea was
accepted.” Bowman, 348 F.3d at 414. A properly conducted Rule
11 colloquy “raise[s] a strong presumption that the plea is
final and binding.” United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc).
First, counsel does not identify any error in the plea
colloquy or assert that Massenburg’s plea was not knowing or
voluntary. Our review of the record reveals that the district
court substantially complied with the Rule 11 requirements in
accepting Massenburg’s guilty plea. Second, Massenburg did not
credibly assert his innocence. Both in his motion and during
the sentencing hearing, Massenburg admitted that his co-
defendant carried a gun during the robbery. Massenburg also
admitted at the sentencing hearing that he carried the gun
during his escape from the robbery.
Turning to the remaining factors, although the
district court determined the two-month delay between the guilty
plea and motion was not unreasonable, this is arguably the only
factor weighing in Massenburg’s favor. But see Moore, 931 F.2d
at 248 (finding that six-week delay between guilty plea and
motion to withdraw was too long). Moreover, although Massenburg
sought to have new counsel appointed two months after he pled
guilty, the record does not show that counsel provided
ineffective assistance. Additionally, allowing Massenburg to
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withdraw his guilty plea would also prejudice the Government and
waste judicial resources, due to the passage of time and the
fact that a trial would be necessary. Accordingly, we find that
the district court did not abuse its discretion in denying
Massenburg’s motion.
Massenburg next questions whether the district court
erred in denying his motion for new counsel. “[A] defendant
does not have an absolute right to substitution of counsel.
. . . As a general rule, a defendant must show good cause in
requesting a new appointed lawyer.” United States v. Mullen, 32
F.3d 891, 895 (4th Cir. 1994). We review the district court’s
denial of new counsel for abuse of discretion, considering the
following factors: “[t]imeliness of the motion; adequacy of the
court’s inquiry into the defendant’s complaint; and whether the
attorney/client conflict was so great that it had resulted in
total lack of communication preventing an adequate defense.”
Id.We conclude that Massenburg did not timely move for
new counsel, considering his motion was not made until more than
two months after he pled guilty. Additionally, it is clear that
the district court adequately inquired into Massenburg’s
complaint during the sentencing hearing. Finally, it does not
appear that the conflict between Massenburg and counsel was so
great that it prevented an adequate defense, considering that
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Massenburg repeatedly admitted guilt as to Counts 1, 2, and 4,
and also admitted that he carried the gun while escaping.
Therefore, we find that the district court did not abuse its
discretion in denying Massenburg’s motion for new counsel.
Finally, Massenburg questions whether the district
court erred in applying a two-level enhancement for obstruction
of justice. We review the district court’s determination that
the defendant obstructed justice for clear error. United
States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005).
Counsel objected to the enhancement, claiming that the
information used to apply it was obtained by way of proffer.
However, the Presentence Investigation Report reveals that the
information was obtained from recorded telephone conversations
that took place prior to the proffer. Therefore, we find that
the district court did not clearly err in applying the
enhancement for obstruction of justice.
In accordance with Anders, we have examined the entire
record and find no meritorious issues for appeal. We therefore
affirm the district court’s judgment. 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
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