Filed: Mar. 26, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4714 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DELFON LEBREW HARE, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-cr-00189-RWT-1) Submitted: March 10, 2009 Decided: March 26, 2009 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Timothy J. Sullivan, BRENNAN SULLIVAN &
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4714 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DELFON LEBREW HARE, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-cr-00189-RWT-1) Submitted: March 10, 2009 Decided: March 26, 2009 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Timothy J. Sullivan, BRENNAN SULLIVAN & M..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4714
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELFON LEBREW HARE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:07-cr-00189-RWT-1)
Submitted: March 10, 2009 Decided: March 26, 2009
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy J. Sullivan, BRENNAN SULLIVAN & MCKENNA, LLP, Greenbelt,
Maryland, for Appellant. Deborah A. Johnston, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Delfon Lebrew Hare pleaded guilty pursuant to a
written plea agreement to two counts of possession with intent
to distribute fifty grams or more of cocaine base, in violation
of 21 U.S.C. § 841(a) (2006). Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967). On
appeal, Hare contends that the district court erred in denying
his motion to withdraw his guilty plea. Finding no error, we
affirm.
We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). 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). Once the district court has accepted a defendant’s
guilty plea, 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); United States v. Battle,
499 F.3d 315, 319 (4th
Cir. 2007). “[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).
In deciding whether to permit a defendant to withdraw
his guilty plea, a district court should consider:
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(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). The
first, second, and fourth of the Moore factors carry the most
weight in these considerations, as they concern whether the
defendant has a good reason to “upset settled systemic
expectations.” United States v. Sparks,
67 F.3d 1145, 1154 (4th
Cir. 1995). However, an appropriately conducted Fed. R. Crim.
P. 11 proceeding “raise[s] a strong presumption that the plea is
final and binding,”
Lambey, 974 F.2d at 1394, as statements made
during a plea hearing “carry a strong presumption of verity,”
Blackledge v. Allison,
431 U.S. 63, 74 (1977). Thus, “a
properly conducted Rule 11 guilty plea colloquy leaves a
defendant with a very limited basis upon which to have his plea
withdrawn.”
Bowman, 348 F.3d at 414.
In reviewing the Moore factors and the district
court’s articulated reasons for denying Hare’s motion to
withdraw, we conclude that the court did not abuse its
discretion in its denial. The record discloses that the
district court’s Rule 11 colloquy was extensive, and Hare does
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not contend on appeal that the court improperly conducted the
proceeding or that it was deficient in any particular respect.
Accordingly, the guilty plea is afforded a strong presumption of
validity. The district court, however, appropriately focused
on the fourth Moore factor as Hare’s main contention was that,
but for counsel’s deficient performance of pressuring him to
plead guilty and asserting he may receive a life sentence by
going to trial, he would not have entered a guilty plea.
To show a fair and just reason to withdraw a plea
based on ineffective assistance of counsel, a defendant must
demonstrate: “(1) that his counsel’s performance fell below an
objective standard of reasonableness and (2) that he was
prejudiced in the sense that there was a reasonable probability
that, but for counsel’s error, he would not have pleaded guilty
and would have insisted on going to trial.” Lambey, 974 F.2d at
1394 (internal quotation marks, alterations and citation
omitted). Here, Hare fails to demonstrate counsel’s performance
fell below an objective standard of reasonableness. In
particular, counsel’s advice regarding Hare’s potential sentence
was correct.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Hare’s conviction and sentence. This court
requires that counsel inform Hare, in writing, of the right to
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petition the Supreme Court of the United States for further
review. If Hare 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 Hare.
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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