United States v. Prilliman , 312 F. App'x 561 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4278
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMAR PRILLIMAN, a/k/a Block,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00297-RDB-1)
Submitted: January 7, 2009 Decided: February 20, 2009
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. James Thomas Wallner, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamar Prilliman, a/k/a Block, appeals his conviction
and 252-month sentence for conspiracy to distribute cocaine,
cocaine base, and heroin, from 1998 through the date of the
indictment in 2006, in violation of 21 U.S.C. § 841(a)(1).
Prilliman pled guilty pursuant to a written plea agreement that
stipulated, pursuant to Fed. R. Crim. P. 11(c)(1)(C), that a
sentence within the range of 235 to 293 months’ imprisonment was
appropriate. Prilliman’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 739 (1967). Although concluding
that there are no meritorious issues for appeal, counsel
questions whether Prilliman’s guilty plea was valid and whether
his sentence is reasonable. Prilliman has filed a pro se
supplemental brief in which he argues that the charge to which
he pled guilty was not supported by a sufficient factual basis
and was barred by the applicable statute of limitations, his
counsel was ineffective in negotiating a plea agreement because
there was not sufficient evidence against him, and his sentence
was not reasonable. The Government declined to file a brief.
After a careful review of the record, we affirm.
I.
“A defendant has no absolute right to withdraw a
guilty plea.” United States v. Bowman, 348 F.3d 408, 413 (4th
2
Cir. 2003) (internal citation and quotation marks omitted).
Once the district court has accepted a defendant’s guilty plea,
it is within the court’s discretion whether to grant a motion to
withdraw it. United States v. Battle, 499 F.3d 315, 319 (4th
Cir. 2007). The defendant bears the burden of showing a “fair
and just reason” for withdrawing his guilty plea. Fed. R. Crim.
P. 11(d)(2)(B). “[A] ‘fair and just’ reason . . . is one that
essentially challenges . . . the fairness of the Rule 11
proceeding.” United States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992) (en banc).
In deciding whether to permit a defendant to withdraw
his guilty plea, a district court considers:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether withdrawal will
cause prejudice to the government; and (6) whether
withdrawal will inconvenience the court and waste
judicial resources.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)
(citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991)) (footnote omitted).
However, an appropriately conducted Rule 11 proceeding
“raise[s] a strong presumption that the plea is final and
binding.” Lambey, 974 F.2d at 1394; see also United States v.
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Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). In this case, the
district court’s properly conducted Rule 11 proceeding raises “a
strong presumption” that Prilliman’s plea should be considered
final and binding, and the district court did not abuse its
discretion by denying his motion to withdraw his plea. At the
Rule 11 hearing, the district court informed Prilliman of the
nature of the charge to which he was pleading guilty and the
sentencing range that he would be subject to under the plea
agreement, and advised him of the rights he was waiving by
pleading guilty. The court heard the Government’s summary of
the factual basis for the plea and Prilliman indicated that he
agreed with the Government’s summary and was in fact guilty of
the charge as described.
Prilliman moved to withdraw his plea after he had been
sentenced, but before the district court entered a commitment
order. At the hearing on the motion to withdraw the plea, the
district court properly considered the Moore factors and found
that Prilliman had not offered credible evidence that his plea
was not knowing or voluntary or that he was legally innocent,
that the delay between the plea and the motion was substantial,
that Prilliman had close assistance of competent counsel, and
that withdrawal of his plea would prejudice the Government and
waste judicial resources. Prilliman’s arguments for withdrawing
his plea essentially reflected his dissatisfaction with the
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sentence he received, rather than a legitimate contention that
his guilty plea was not knowing and voluntary.
II.
Prilliman has not shown that the district court
plainly erred by sentencing him based in part upon factual
determinations that he disputes for the first time on appeal in
a conclusory fashion. Prilliman’s sentence was within the
properly calculated advisory guidelines range and the district
court extensively considered the § 3553(a) factors.
III.
Prilliman’s claims that the charge to which he pled
guilty was not supported by a sufficient factual basis and was
barred by the statute of limitations are patently meritless.
Prilliman did not contest the Government’s factual summary of
his drug trafficking activities at the Rule 11 hearing and
expressly admitted that he took part in the conduct that was
described. Because the indictment charged that his drug
trafficking activity continued up until the date when he was
charged, an allegation that Prilliman never disputed in the
district court, his conduct does not fall outside the statute of
limitations.
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Prilliman primarily claims that he received
ineffective assistance of counsel because his counsel negotiated
a plea agreement despite the lack of evidence for the charges he
faced. We may address on direct appeal a claim that counsel was
ineffective only if the ineffectiveness appears conclusively on
the face of the record. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). In this case, the record does not
reflect a lack of evidence to support the charge to which
Prilliman pled guilty, and there is no conclusive indication
from the record that Prilliman’s counsel did not properly
evaluate the evidence against Prilliman when he negotiated the
plea agreement.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. We deny
Prilliman’s motion to withdraw, relieve, or substitute counsel,
and his motion for summary remand. This court requires that
counsel inform Prilliman, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Prilliman requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Prilliman.
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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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