United States v. Everette Dawkins ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVERETTE DEANGELO DAWKINS,
Defendant - Appellant.
No. 18-4022
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVERETTE DEANGELO DAWKINS,
Defendant - Appellant.
Appeals from the United States District Court for the District of South Carolina, at
Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:17-cr-00123-HMH-1;
7:10-cr-00138-HMH-1)
Submitted: March 18, 2019 Decided: April 3, 2019
Before WYNN, Circuit Judge, and SHEDD and DUNCAN, Senior Circuit Judges.
Affirmed by unpublished per curiam opinion.
William G. Yarborough, III, Greenville, South Carolina, for Appellant. Sherri A. Lydon,
United States Attorney, Columbia, South Carolina, E. Jean Howard, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In No. 18-4021, Everette DeAngelo Dawkins appeals his conviction, pursuant to a
guilty plea, of conspiracy to possess with intent to distribute methamphetamine and
marijuana, 21 U.S.C. §§ 841(a)(1), 846 (2012). In No. 18-4022, he appeals the criminal
judgment revoking supervised release and imposing a 24-month sentence in a separate
criminal matter. The appeals have been consolidated. Dawkins raises one issue with
respect to the drug conviction but raises no issues concerning the supervised release
matter. We affirm in both cases.
Dawkins contends in No. 18-4021 that the district court erred when it denied his
motion to withdraw his guilty plea. We review the district court’s decision for abuse of
discretion. United States v. Nicholson, 676 F.3d 376, 383 (4th Cir 2012).
A defendant does not have an absolute right to withdraw a guilty plea. United
States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003); United States v. Moore, 931 F.2d
245, 248 (4th Cir. 1991). Rather, after the court accepts a guilty plea, but before
sentencing, a defendant may withdraw his plea if he “can show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The burden of “showing a fair
and just reason” for withdrawal of the plea rests with the defendant. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). We have developed a nonexclusive list of
issues to consider in determining if a defendant has met his burden:
(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
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cause prejudice to the government; and (6) whether it will inconvenience
the court and waste judicial resources.
Moore, 931 F.2d at 248.
“The most important consideration in resolving a motion to withdraw a guilty plea
is an evaluation of the Rule 11 colloquy. Bowman, 348 F.3d at 414. We closely
scrutinize the Rule 11 colloquy and, if the Rule 11 proceeding was properly conducted,
“a strong presumption that the plea is final and binding” attaches. Nicholson, 676 F.3d at
384 (internal quotation marks omitted). “[A] properly conducted Rule 11 . . . colloquy
leaves a defendant with a very limited basis upon which to have his plea withdrawn.”
Bowman, 348 F.3d at 414.
At the Rule 11 hearing, Dawkins informed the court that he was 29 and his mind
was clear. He had discussed the charges with his attorney, with whose services he was
satisfied. Dawkins informed the court that his plea was not the result of threats, coercion
or force, and he admitted his guilt. He had reviewed the plea agreement with his lawyer,
and he understood the agreement. The factual summary presented to the court was
accurate, Dawkins said. Our review of the plea transcript discloses substantial
compliance with Rule 11. Accordingly, we strongly presume the plea to be “final and
binding.” See Nicholson, 676 F.3d at 384.
Turning to the first and second Moore factors, Dawkins offered no credible
evidence that his plea was not knowing and voluntary. Nor did he credibly assert his
legal innocence. Notably, he admitted his guilt both at the Rule 11 hearing and at the
hearing on the motion to withdraw. His reason for wanting to withdraw his plea was his
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unsubstantiated claim that the evidence against him was sparse and codefendants had lied
to authorities about the extent of his involvement in the conspiracy. In light of his sworn
statements that he was guilty and the factual summary presented at the Rule 11 hearing
was accurate, we conclude that the first two Moore factors weigh heavily against
Dawkins.
Addressing the remaining factors, the delay between entry of the plea and filing of
the motion to withdraw was significant. Dawkins entered his plea on June 8, 2017, and
he filed his first motion to withdraw on September 18, 2017. We have held that even
shorter delays may weigh against a defendant. United States v. Craig, 985 F.2d 175, 178
(4th Cir. 1993) (eight-week delay); Moore, 931 F.2d at 248 (six-week delay). With
respect to whether Dawkins had the close assistance of counsel, he assured the court at
the Rule 11 hearing that he was satisfied with his attorney’s services and had had enough
time to consult with counsel. The parties differed on whether the Government would be
prejudiced by withdrawal of the plea and whether withdrawal would inconvenience the
court and waste judicial resources. Even if those factors favor Dawkins, we hold that, on
balance, the Moore factors weigh against permitting Dawkins to withdraw his plea. We
conclude that the district court’s denial of the motion was not an abuse of discretion.
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We therefore affirm. 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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