Vacated by Supreme Court, February 28, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4687
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAUL LEE JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-02-35)
Submitted: June 23, 2004 Decided: September 16, 2004
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William Cipriani, CIPRIANI & PAULL, L.C., Wellsburg, West Virginia,
for Appellant. Thomas E. Johnston, United States Attorney, Thomas
O. Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Paul Lee Jackson appeals his conviction and 240-month
sentence following his guilty plea to conspiring to distribute more
than 50 grams of cocaine base from 1995 to 2002, distributing
approximately 1.71 grams of cocaine base, and intending to
distribute approximately .10 grams of cocaine base. See 21 U.S.C.
§§ 2, 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 846 (2000).
On appeal, Jackson argues that the district court abused
its discretion in denying his motion to withdraw his guilty plea.
Jackson also argues that the district court clearly erred by
adopting the finding in the Presentence Report (“PSR”) with regard
to his relevant conduct. Finally, Jackson has filed a pro se
supplemental brief asserting several claims.
Where, as here, a defendant seeks to withdraw his guilty
plea before sentencing, he must demonstrate a “fair and just
reason” for withdrawal of the plea. Fed. R. Crim. P. 11(d). “A
defendant has no ‘absolute right’ to withdraw a guilty plea, and
the district court has discretion to decide whether a ‘fair and
just reason’ exists upon which to grant a withdrawal.” United
States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003), cert. denied,
124 S. Ct. 1523 (2004) (quoting United States v. Ubakanma, 215 F.3d
421, 424 (4th Cir. 2000)). The district court’s denial of a motion
to withdraw a guilty plea is reviewed for abuse of discretion.
United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).
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In determining whether a defendant has shown a “fair and
just reason” to withdraw his guilty plea, a court examines the
following six factors:
(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 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
most important consideration in resolving a motion to withdraw a
guilty plea, however, is whether the Rule 11 plea colloquy was
properly conducted. See Bowman, 348 F.3d at 414. A court should
closely scrutinize the Rule 11 colloquy and attach a strong
presumption that the plea is final and binding if the Rule 11
proceeding is adequate. United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992).
The district court evaluated Jackson’s motion to withdraw
his guilty plea in light of the six factors enumerated in Moore.
See Moore, 931 F.2d at 248. The court found that Jackson had
simply not offered credible evidence that his plea was not knowing
and voluntary. The court also concluded that the delay between the
entry of his plea and Jackson’s motion to withdraw it, as well as
his inability to credibly assert his legal innocence, counseled
against granting his motion. Upon review of the record, including
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a thorough review of the Rule 11 hearing, we cannot say that the
district court abused its discretion in denying Jackson’s motion to
withdraw his plea.
Jackson also argues that the district court clearly erred
in accepting the findings of the PSR with regard to drug quantity.
Because, at sentencing, Jackson failed to meet his burden to show
that the PSR findings were inaccurate, his claim on this ground is
without merit. See United States v. Terry, 916 F.2d 157, 162 (4th
Cir. 1990).
Additionally, Jackson filed a motion for leave to file a
supplemental brief in which he has raised five claims. One,
Jackson argues the district court engaged in judicial misconduct by
failing to rule on several pretrial motions. This claim is without
merit because the record reflects that these motions were
terminated after Jackson pleaded guilty. Two, Jackson argues that
the court abused its discretion by refusing to grant his attorney’s
first motion to withdraw as counsel due to his attorney’s potential
conflict of interest. This claim must be denied because any
conflict of interest issue was cured by the court’s appointment of
co-counsel. Three, Jackson argues that the Government engaged in
misconduct by failing to turn over exculpatory evidence. Because
Jackson fails to articulate the substance of the allegedly
exculpatory evidence, this claim must also be denied. Four,
Jackson argues that his counsel was ineffective. We do not
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consider claims of ineffective assistance of counsel on direct
appeal unless counsel's ineffectiveness conclusively appears on the
face of the record. United States v. DeFusco, 949 F.2d 114, 120
(4th Cir. 1991). Because the record does not conclusively
establish that counsel was ineffective, any such claims are more
appropriately raised, if at all, in a 28 U.S.C. § 2255 (2000)
motion. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Five, Jackson argues that he was sentenced in violation of Apprendi
v. New Jersey, 530 U.S. 466 (2000). Because Jackson pleaded guilty
to conspiring to distribute more than fifty grams of crack, a crime
with a statutory maximum sentence of life imprisonment, Jackson’s
240-month sentence did not violate Apprendi. 530 U.S. at 489
(“[A]ny fact that increases the penalty for a crime beyond the
prescribed statutory maximum sentence must be submitted to a jury,
and proved beyond a reasonable doubt.”).
Finally, Jackson filed a letter under Fed. R. App. P.
28(j), directing our attention to the recent Supreme Court decision
in Blakely v. Washington, 124 S. Ct. 2531 (2004). Jackson argues
that Blakely dictates that this Court must find his sentence
unconstitutional. Pursuant to United States v. Hammoud, No. 03-
4253, 2004 WL 1730309 (4th Cir. Aug. 2, 2004) (en banc order), we
find this argument without merit.
Accordingly, we affirm Jackson’s conviction and sentence.
We grant Jackson’s motion to file his supplemental brief. We
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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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