UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4794
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VEOTIS HARDING, a/k/a Vito,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-02-191-BO)
Submitted: July 13, 2005 Decided: August 24, 2005
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Walter H. Paramore, III, LAW OFFICES OF WALTER H. PARAMORE, III,
Jacksonville, North Carolina, for Appellant. Frank D. Whitney,
United States Attorney, Anne M. Hayes, Christine Witcover Dean,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Veotis Harding pled guilty without a plea agreement to
all thirty-five counts of an indictment charging him with
conspiracy, racketeering, and money laundering and was sentenced to
forty years imprisonment. Harding appeals, claiming that the
district court abused its discretion in denying his motions for
appointment of a mental health expert and for withdrawal of his
guilty plea, and his attorney’s motion to withdraw made at
sentencing. Harding also challenges the constitutionality of his
sentence in light of the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004). For the reasons that follow, we
affirm Harding’s conviction, but vacate his sentence and remand for
resentencing.
Harding’s conviction arose out of his operation of an
“escort service” in Fayetteville, North Carolina, from 1996 to
2002, during which he recruited numerous very young girls and often
forced their participation in his prostitution business by use of
violence and drugs. On January 15, 2003, approximately three
months after the Fed. R. Crim. P. 11 hearing, Harding filed a pro
se motion to withdraw his guilty plea. On the same day, his
attorney filed a motion for appointment of a mental health expert
to assess Harding’s mental capacity. The district court denied
both motions. At the beginning of his sentencing hearing, Harding
made an oral motion to relieve his counsel; the motion was denied.
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A district court may grant a motion for a mental health
examination if there is “reasonable cause to believe that the
defendant may presently be suffering from a mental disease or
defect.” 18 U.S.C. § 4241(a) (competence to stand trial),
§ 4244(a) (competence to be sentenced); see United States v.
General, 278 F.3d 389, 397 (4th Cir. 2002). To determine if
“reasonable cause existed, [the court] look[s] to all of the record
evidence pertaining to the defendant’s competence, including: (1)
any history of irrational behavior; (2) the defendant’s demeanor at
and prior to sentencing; and (3) prior medical opinions on
competency.” Id. at 397.
Here, the presentence report indicated that Harding had
been treated in the past for drug abuse and that he was diagnosed
with a learning disability in 1973. However, nothing in the report
mentioned that Harding’s competence had ever been questioned.
Moreover, Harding’s statements at his sentencing hearing indicate
that he fully understood the nature of the proceedings and that he
assisted his attorney in preparing for the hearing. Accordingly,
we find that the district court did not abuse its discretion in
denying Harding’s motion for appointment of a mental health expert.
The district court’s denial of a motion to withdraw a
guilty plea is reviewed 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, even before
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sentencing. United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). Rather, the defendant bears the burden of demonstrating
that a “fair and just reason” supports his request to withdraw his
plea. Id. Factors considered in determining whether a defendant
has shown a fair and just reason for withdrawing his guilty plea
include: (1) whether the defendant has offered credible evidence
that the plea was not knowing or 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 the defendant 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. Id. Although all the
factors in Moore must be given appropriate weight, the central
question is whether the Rule 11 hearing was properly conducted.
United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). This
court closely scrutinizes the Rule 11 colloquy and attaches 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)(en banc). Applying these factors, we
find that the district court did not abuse its discretion in
denying Harding’s motion to withdraw his guilty plea.
Next, Harding contends that the district court abused its
discretion by not allowing his attorney to withdraw at the
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sentencing hearing. In reviewing the district court’s denial of a
motion for counsel to withdraw, this court considers: “‘Timeliness
of the motion; adequacy of the court’s inquiry into the defendant’s
complaint; and whether the attorney/client conflict was so great
that it had resulted in total lack of communication preventing an
adequate defense.’” United States v. Mullen, 32 F.3d 891, 895 (4th
Cir. 1994) (quoting United States v. Gallop, 838 F.2d 105, 108 (4th
Cir. 1988)). Whether a motion for substitution of counsel should
be granted is within a trial court’s discretion. United States v.
Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994).
We find no abuse of discretion. First, Harding did not
make his motion to withdraw until after the sentencing hearing had
begun and failed to show any circumstances justifying his late
request. Second, the court adequately inquired into the basis for
the motion and heard from Harding, his attorney, and the
Government’s attorney. Finally, there is no evidence in the record
that the conflict between Harding and his attorney resulted in a
“total lack of communication.”
Finally, Harding challenges the constitutionality of his
sentence under Blakely and its progeny. Because Harding did not
raise this issue at sentencing, his argument is reviewed for plain
error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005)
(citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).
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The Supreme Court held in United States v. Booker 125 S.
Ct. 738 (2005), that Blakely applies to the federal sentencing
guidelines and that the mandatory manner in which the federal
sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. The Court remedied
the constitutional violation by severing two statutory provisions,
18 U.S.C. § 3553(b)(1) (2000) (requiring courts to impose a
sentence within the applicable guideline range), and 18 U.S.C.
§ 3742(e) (2000) (setting forth appellate standards of review for
guideline issues), thereby making the guidelines advisory. Hughes,
401 F.3d at 546 (citing Booker, 125 S. Ct. at 756-57).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C. § 3553(a), and
impose a sentence. If a court imposes a sentence outside the
guideline range, the district court must state its reasons for
doing so. Id. This remedial scheme applies to any sentence
imposed under the mandatory guidelines, regardless of whether or
not the sentence violates the Sixth Amendment. Id. at 547 (citing
Booker, 125 S. Ct. at 769).*
*
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Harding’s sentencing. 401 F.3d 540, 545
n.4.
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Harding’s sentencing range was greater than the term
authorized without the multiple judicial enhancements he received.
Accordingly, because the enhancements occurred under a mandatory
guidelines scheme, we vacate and remand his sentence for
resentencing consistent with Booker and Hughes. Although the
sentencing guidelines are no longer mandatory, Booker makes clear
that at resentencing the court must still “consult [the] Guidelines
and take them into account when sentencing.” 125 S. Ct. at 767.
On remand, the district court should first determine the
appropriate sentencing range under the Guidelines, making all
factual findings appropriate for that determination. See Hughes
401 F.3d at 546. The court should consider this sentencing range
along with other factors described in 18 U.S.C. § 3553(a) (2000),
and then impose a sentence. Id. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C. § 3553(c)(2) (2000). Id. The
sentence must be “within the statutorily prescribed range . . . and
reasonable.” Id. at 547.
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 IN PART,
VACATED IN PART,
AND REMANDED
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