United States v. Weiss ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5396
ROY DANIEL WEISS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Terrence W. Boyle, District Judge.
(CR-93-16, CR-93-24, CR-93-25)
Submitted: January 30, 1996
Decided: April 12, 1996
Before NIEMEYER and LUTTIG, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Albert M. Neal, Jr., Canton, North Carolina, for Appellant. Thomas
Richard Ascik, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Roy Daniel Weiss pled guilty, pursuant to a plea agreement, to
three counts of bank robbery in violation of 18 U.S.C. §§ 2113(a), (d)
(1988), and the use of a firearm in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1) (West Supp. 1995). The court
accepted Weiss's guilty plea, but postponed finding a factual basis for
the plea until sentencing.
The court subsequently held a hearing at which it found a factual
basis for Weiss's guilty plea, denied his motion to withdraw his guilty
plea, and sentenced him to eighty-seven months imprisonment on
each bank robbery count to run consecutive to sixty months imprison-
ment imposed pursuant to the firearm conviction.
Weiss noted a timely appeal. His counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), claiming that the district
court erred by: (1) denying Weiss's motion for a continuance to pres-
ent his motion to withdraw his guilty plea; (2) denying his motion to
withdraw his guilty plea; and (3) denying his motion to continue his
sentencing hearing. Weiss filed a supplemental brief claiming that the
district court: (1) did not have jurisdiction to enter a judgment or sen-
tence against him; (2) erred when accepting his guilty plea without
first determining his competency to enter a plea; (3) denied him effec-
tive assistance of counsel by not granting his counsel additional time
to prepare; and (4) erred by failing to find an adequate factual basis
that the robbed banks were insured by the F.D.I.C.
The denial of a motion for a continuance is reviewed for an abuse
of discretion. Morris v. Slappy, 461 U.S. 1, 11-12 (1983). A trial court
abuses its discretion when it denies a continuance based upon an
unreasonable and arbitrary insistence on expeditiousness. Id. The dis-
trict court did not abuse its discretion in denying Weiss a continuance
to present his withdrawal motion. There was no merit in the motion
to withdraw the plea, and the record reveals no unreasonable or arbi-
trary insistence or expeditiousness.
2
A defendant does not have an absolute right to withdraw a guilty
plea. United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert.
denied, 502 U.S. 857 (1991). If a motion to withdraw a guilty plea is
made before sentencing, a district court may grant the motion upon
a showing of any fair and just reason. Fed. R. Crim. P. 32(d). This
court reviews the denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Puckett , 61 F.3d 1092, 1099 (4th
Cir. 1995). The district court's factual findings in support of its denial
will not be overturned unless they are clearly erroneous. United States
v. Suter, 755 F.2d 523, 525 (7th Cir.), cert. denied, 471 U.S. 1103(1985).
The relevant factors weigh against Weiss. First, Weiss has not
shown that his guilty plea was entered unknowingly or involuntarily.
Moore, 931 F.2d at 248. The transcript from the guilty plea hearing
reveals that the court conducted an extensive and adequate plea hear-
ing. The court specifically found, after questioning Weiss, that Weiss
was capable and competent of pleading guilty, and he pled guilty
freely and voluntarily, with the understanding of the nature of the
charges against him and the consequences of pleading guilty. Weiss
testified that nobody intimidated, threatened, or harassed him, or
influenced his decision to plead guilty. He further testified that
nobody made him promises of leniency other than those contained in
his plea agreement. Furthermore, a psychiatric evaluation prepared
subsequent to this plea hearing did not reveal that Weiss was incom-
petent to plead guilty. Second, Weiss has never alleged that he was
innocent of the charges to which he pled guilty. Id. Third, Weiss
moved to withdraw his guilty plea approximately seven months after
his guilty plea hearing. Id. Fourth, there is no evidence that Weiss's
counsel rendered ineffective assistance of counsel. Id. At his Rule 11
hearing, Weiss testified that he had had enough time to discuss with
his attorney any possible defenses, was satisfied with the services of
his counsel, and told his counsel everything he wanted his counsel to
know about the case. Fifth and sixth, there would have been substan-
tial prejudice to the Government had the court granted Weiss's
motion, and granting Weiss's motion would have inconvenienced the
court and wasted judicial resources. Id. Although the district court did
not make specific findings as to these factors, the record reveals that
the court and the Government were ready to proceed to trial when
Weiss pled guilty. Therefore, the district court did not abuse its dis-
3
cretion in denying Weiss's motion to withdraw his guilty plea.
Puckett, 61 F.3d at 1099.
Weiss claims that the district court erred by not granting him a con-
tinuance to present objections to his presentence report. At his sen-
tencing hearing the court personally addressed Weiss and asked him
whether he had any objections to the report that would affect the cal-
culation of his sentencing guideline range. Neither Weiss nor his
counsel offered any objections. Therefore, the court did not abuse its
discretion in denying Weiss a continuance to present his objections to
the presentence report. Morris, 461 U.S. at 11-12.
Weiss contends that the district court did not have jurisdiction to
convict or sentence him because the district court docket sheet states
that the court granted his motion to withdraw his guilty plea on March
24, 1994. However, this entry is incorrect. The transcript from the
March 24 hearing at which Weiss's initial counsel was discharged
reveals that the court intended for Weiss's new counsel to "pick up
the case addressing both the matter of evaluation of the presentence
report and withdrawal of the plea." Thus, this claim is meritless.
Weiss contends that the court erroneously accepted his guilty plea
without first determining whether he was competent to enter a plea.
An alleged violation of Fed. R. Crim. P. 11 is reviewed under a harm-
less error standard. Rule 11(h); United States v. DeFusco, 949 F.2d
114, 117 (4th Cir. 1991), cert. denied, 503 U.S. 997 (1992). The tran-
script from the plea hearing reveals that the court did determine
Weiss's competency before accepting his guilty plea. At the time the
plea was entered, Weiss was thirty-nine years old and had completed
the tenth grade in school. The court found that Weiss was "capable
and competent with reference to making an informed plea." Although
Weiss's counsel claimed that the psychiatric evaluation prepared sub-
sequent to Weiss's plea hearing "showed some dysfunction," the eval-
uation did not show that he was incompetent to enter a plea. Even
assuming the district court committed a Rule 11 violation by accept-
ing Weiss's guilty plea without determining whether he was compe-
tent to enter a plea, this was harmless error because Weiss has not
shown that he was incompetent. Id.Weiss contends that he received ineffective assistance of counsel
because his counsel did not file any objections to the presentence
4
report and the district court did not grant his counsel additional time
to present objections. This claim should be raised by motion under 28
U.S.C. § 2255 (1988), in the district court and not on direct appeal,
unless it "conclusively appears" from the record that defense counsel
did not provide effective representation. United States v. Fisher, 477
F.2d 300, 302 (4th Cir. 1973) (citing United States v. Mandello, 426
F.2d 1021, 1023 (4th Cir. 1970)); see also DeFusco, 949 F.2d at 120-
21. Because the record before us fails to establish conclusively trial
counsel's ineffective assistance, we decline to review this issue at this
time.
Weiss claims that the court did not establish that the robbed banks
were insured by the FDIC as required for a violation of § 2113(a).
However, the record reveals otherwise. The FBI agent who provided
the factual basis for Weiss's guilty plea testified that the banks were
insured by the FDIC. Weiss did not dispute this testimony.
We have examined the entire record in this case in accordance with
the requirements of Anders, supra, and find no meritorious issues for
appeal. The court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court at that time for leave to withdraw from representa-
tion. Counsel's motion must state that a copy thereof was served on
the client. We affirm the district court's judgment order. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process. We also deny his motion
requesting a personal copy of transcripts prepared at the Govern-
ment's expense because his appeal does not present a substantial
question. 28 U.S.C. § 753(f) (1988). We further deny Weiss's
motions to substitute his attorney, modify his imprisonment, and see
the record.
AFFIRMED
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