Filed: Jan. 21, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4052 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMADE BARSON JONES, a/k/a Jamade Derson Jones, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00050-RLV-CH-1) Submitted: December 15, 2010 Decided: January 21, 2011 Before NIEMEYER, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4052 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMADE BARSON JONES, a/k/a Jamade Derson Jones, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00050-RLV-CH-1) Submitted: December 15, 2010 Decided: January 21, 2011 Before NIEMEYER, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per c..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMADE BARSON JONES, a/k/a Jamade Derson Jones,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:03-cr-00050-RLV-CH-1)
Submitted: December 15, 2010 Decided: January 21, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reita P. Pendry, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamade Barson Jones appeals from his conviction and
162-month sentence entered pursuant to his guilty plea to
conspiracy to possess with intent to distribute cocaine. On
appeal, Jones asserts that the district court erred by
(1) failing to provide individualized reasoning for his
sentence, (2) denying his motion for a continuance, and
(3) denying his motion to withdraw his guilty plea. The
Government asserts that Jones’ waiver of appellate rights in his
plea agreement bars claims (1) and (2). We affirm.
I.
It is well-settled that “a defendant may waive in a
valid plea agreement the right of appeal under 18 U.S.C. § 3742
[2006].” United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). “Whether a defendant has effectively waived the right to
appeal is an issue of law that we review de novo.” United
States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). In
undertaking that review, we will enforce an appellate waiver
where such a waiver “is knowing and intelligent and the issue
sought to be appealed falls within the scope of the appeal
waiver.” United States v. Poindexter,
492 F.3d 263, 270 (4th
Cir. 2007). An appellate waiver is generally considered to be
knowing and intelligent where the court specifically questioned
2
the defendant regarding the waiver during the Fed. R. Crim. P.
11 colloquy and the record indicates that the defendant
understood the significance of the waiver. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Further, only a “narrow class of claims involves
errors that the defendant ‘could not have reasonably
contemplated’ when the plea agreement was executed,” and
therefore are excluded from the scope of the waiver.
Poindexter, 492 F.3d at 270. Claims that proceedings following
the guilty plea were conducted in violation of the defendant’s
Sixth Amendment right to counsel, see United States v. Attar,
38
F.3d 727, 732-33 (4th Cir. 1994), or that a sentence was imposed
in excess of the statutory maximum penalty “or based on a
constitutionally impermissible factor such as race,” United
States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992), fall within
the category of claims excluded from an appellate waiver.
Here, the record shows that the district court
questioned Jones regarding the appellate waiver provision at his
Rule 11 hearing, and Jones acknowledged that he agreed with and
understood the plea agreement. In addition, Jones signed the
plea agreement which included an unambiguous waiver of appellate
rights. Moreover, Jones does not dispute the contention that he
knowingly and intelligently waived his right to appeal his
sentence. Accordingly, we find that Jones knowingly and
3
voluntarily agreed to the appellate waiver; therefore, the
waiver is valid and enforceable.
Jones does not dispute that Claim (1) is barred by his
waiver. Thus, we dismiss this claim. The parties do, however,
disagree as to whether Jones’ claim that the district court
improperly denied his motion to continue sentencing in order to
find new counsel was waived by his plea agreement. As discussed
above, claims that proceedings following the guilty plea were
conducted in violation of the Sixth Amendment right to counsel
are not waivable. Such is the claim raised here. Jones asserts
that the district court, in denying his motion to continue
(which was filed after his guilty plea), violated his Sixth
Amendment right to counsel of his own choice. See United
States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (discussing
right to counsel of choice). Accordingly, this claim does not
fall within the scope of Jones’ appellate waiver and will,
instead, be reviewed on the merits.
II.
The district court’s denial of a continuance is
reviewed for abuse of discretion. United States v. Williams,
445 F.3d 724, 739 (4th Cir. 2006). The trial court abuses its
discretion when its denial of a motion for continuance is “an
unreasoning and arbitrary insistence upon expeditiousness in the
4
face of a justifiable request for delay.” Id. In addition,
whether to grant a motion for substitution of counsel is also
within a court’s discretion. United States v. Corporan-Cuevas,
35 F.3d 953, 956 (4th Cir. 1994). In evaluating whether the
trial court abused its discretion in denying a defendant’s
motion for substitution of counsel, we must consider: (1) the
timeliness of the motion; (2) the adequacy of the inquiry into
the defendant’s complaint about his attorney; and (3) whether
the attorney/client conflict was so great that it resulted in
total lack of communication preventing an adequate defense.
United States v. Reevey,
364 F.3d 151, 156 (4th Cir. 2004).
These factors are weighed against the district court’s “interest
in the orderly administration of justice.”
Id. at 157. In
addition, a district court has wide latitude in limiting a
defendant’s right to counsel of choice based upon fairness and
the demands of the court’s calendar.
Gonzalez-Lopez, 548 U.S.
at 152.
Jones’ motion was untimely filed on the morning of
sentencing. He had already replaced one attorney (and received
continuances to accommodate) and over a year had passed since he
was extradited. The court made an adequate inquiry into the
basis for Jones’ motion, allowing him to explain fully the
reasons for his dissatisfaction with his attorney and
questioning the attorney as to why certain motions were not
5
filed. The record supports the conclusion that Jones and his
attorney were communicating, although they disagreed about the
best course of action to take. Moreover, Jones’ sister
testified at the hearing that no other attorneys were interested
in taking the case because the case had been pending for so long
and sentencing was imminent. Because the district court’s
ruling was not arbitrary, the court did not abuse its discretion
in denying Jones’ motion for a continuance.
III.
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). The
defendant bears the burden of showing a “fair and just reason”
for the withdrawal of 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). Courts consider six factors in
determining whether to permit the withdrawal of a guilty plea:
(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
6
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).
An appropriately conducted Rule 11 proceeding, however,
“raise[s] a strong presumption that the plea is final and
binding.”
Lambey, 974 F.2d at 1394.
On appeal, Jones contends that his attorney lied to
him at the time of his plea.
*
As such, he asserts that his plea was not knowing and
voluntary. However, he presents no evidence aside from his
self-serving and conclusory statement. In fact, Jones does not
even explain what his attorney allegedly lied to him about or
how it affected the voluntariness of his plea. In light of the
magistrate judge’s undisputed full compliance with Rule 11 in
accepting Jones’ guilty plea, Jones has not “offered credible
evidence that his plea was not knowing or otherwise
involuntary.” Ubakanma, 215 F.3d at 424. Moreover, Jones
informed the magistrate judge during the plea colloquy that he
was satisfied with his attorney and had not been threatened or
*
At the hearing on his motion to withdraw, Jones did not
precisely allege that his attorney lied to him. Instead, he
asserted that he asked his attorney to move to withdraw his plea
and the attorney refused, that his attorney was not working in
his best interests, and that he did not receive all the
transcripts he requested.
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coerced to plead guilty, and his statements at the plea hearing
indicated that he entered the plea knowingly and voluntarily.
See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (conclusory
allegations in conflict with statements at Rule 11 hearing are
subject to summary dismissal); Fields v. Attorney Gen.,
956 F.2d
1290, 1299 (4th Cir. 1992) (“Absent clear and convincing
evidence to the contrary, a defendant is bound by the
representations he makes under oath during a plea colloquy.”).
Next, Jones does not, credibly or otherwise, assert
his legal innocence. In addition, his motion to withdraw was
filed years after he entered his guilty plea. See United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991) (finding that
six-week delay militated against withdrawal of plea). Jones’
assertion that he lacked close assistance of counsel is the only
Moore factor that might weigh in his favor; however, he has not
shown, nor does the record reveal, that his attorney was
incompetent. Finally, allowing Jones to withdraw his plea
likely would have prejudiced the Government and inconvenienced
the court due to the lengthy passage of time. We therefore
conclude that the district court did not abuse its discretion in
denying Jones’ motion to withdraw his guilty plea.
Jones also asserts that he was entitled to withdraw
his guilty plea because, at the time of his motion, the plea had
not yet been accepted by the district court. See Fed. R. Crim.
8
P. 11(d)(1) (a defendant may withdraw plea, for any reason or no
reason, before the court accepts it). Specifically, Jones
asserts that, because his plea proceeding was conducted by a
magistrate judge, the district court was required to conduct a
de novo review of his plea. According to Jones, because the
district court did not conduct the required review of his
assertion that his attorney had lied to him, the magistrate
lacked the constitutional authority to accept his plea.
However, Jones’ guilty plea had been accepted by the
magistrate judge following an undisputedly complete Rule 11
inquiry as well as a clear waiver of his right to have his plea
taken by the district court. A magistrate judge may accept
pleas in felony cases, provided the defendant consents and as
long as the district court exercises de novo review of the
magistrate judge’s decision upon request. See United States v.
Osborne, 345 F.3d 281, 289-90 (4th Cir. 2003) (holding that,
absent request or objection, district court is not bound to
conduct de novo review).
Although the magistrate judge’s acceptance of Jones’
guilty plea was subject to de novo review, it was still properly
entered years prior to his motion to withdraw his guilty plea.
The fact that the magistrate judge accepted the plea subject to
the district court’s review does not invalidate an adequate Rule
11 proceeding by a magistrate judge, or provide a defendant with
9
the absolute right to withdraw. See United States v. Williams,
23 F.3d 629, 634-35 (2d Cir. 1994). The court’s decision to
disallow withdrawal remains subject to the clearly erroneous
standard of review.
Id.
Moreover, Jones’ factual assertion that the district
court did not conduct de novo review when it failed to consider
his allegations is unsupported by the record. As discussed
above, Jones never alleged in district court that his attorney
lied to him. The district court fully considered the grounds
for withdrawal raised by Jones and discussed the relevant
factors. Further, Jones’ allegations had nothing to do with the
propriety of the magistrate judge’s Rule 11 hearing. Thus, as
Jones’ only argument in support of his assertion that the
district court failed to conduct a de novo review is meritless,
there are no grounds on which to disregard the magistrate
judge’s acceptance of Jones’ plea.
Accordingly, we affirm Jones’ conviction and sentence.
This court requires that counsel inform her client, in writing,
of his right to petition the Supreme Court of the United States
for further 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 for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. We dispense with oral
10
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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