UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4221
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MISAEL SANDOVAL DELGADO, a/k/a Misael
Sandoval,
Defendant - Appellant.
No. 04-4434
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MISAEL SANDOVAL DELGADO, a/k/a Misael
Sandoval,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-01-104)
Submitted: July 29, 2005 Decided: September 16, 2005
Before WILKINSON, MOTZ, and KING, Circuit Judges.
No. 04-4221 dismissed; No. 04-4434 affirmed by unpublished per
curiam opinion.
Eric A. Bach, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Jack M. Knight, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Misael Sandoval Delgado pleaded guilty to conspiracy to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 846 (2000) (Count One); possession with intent to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 841(a)(1) (2000); and possession of a firearm during and
in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (2000). In No. 04-4434, Delgado appeals, contending that
the district court erred when it denied his motion to withdraw his
guilty plea and that his sentence violates the Sixth Amendment
because the district court, rather than a jury, made findings
regarding the amount of cocaine for which he was responsible. We
affirm.*
I
There was no written plea agreement in this case.
Delgado’s Fed. R. Crim. P. 11 hearing was conducted on May 22,
2002. At the hearing, Delgado stated that he understood the
*
In No. 04-4221, Delgado appeals the district court’s order
denying his “Motion for Permission to File an Out-of-Time Appeal
or, in the Alternative, Motion Pursuant to 28 U.S.C. § 2255 to
Vacate Sentence.” After the district court ruled on this motion,
the court vacated the original criminal judgment, directed that a
new criminal judgment with the same sentence be filed, and ordered
counsel be appointed for Delgado to pursue a direct appeal.
Because Delgado has received the relief he sought--namely, an
opportunity to appeal from the criminal judgment--we dismiss No.
04-4221 as moot.
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charges against him, the potential sentence that he faced for each
charged offense, the applicability of the sentencing guidelines,
and the rights he was waiving by pleading guilty. Delgado stated
that he was pleading guilty because he was in fact guilty of the
offenses charged. He claimed to have had ample time to consult
with his attorney.
On August 7, 2002, Delgado sent the court a letter
stating that he wanted to withdraw his guilty plea with respect to
the firearm offense. He gave no reason for his request. Following
a hearing, the district court denied the motion, applying the six
factors identified in United States v. Wilson, 81 F.3d 1300 (4th
Cir. 1996).
Delgado’s presentence report (psr) assigned a base
offense level of 32, representing at least five, but less than
fifteen, kilograms of cocaine. See U.S. Sentencing Guidelines
Manual § 2D1.1 (2001). Two levels were deducted for acceptance of
responsibility. See USSG § 3E1.1(a). With a resulting offense
level of 30 and a criminal history category of I, Delgado’s
guideline range was 97-121 months. Because the statutory minimum
sentence on the drug charges was ten years, the guideline range
became 120-121 months, to be followed by a mandatory consecutive
sentence for the firearm conviction of not less than five years.
There were no objections to the psr that affected the term of
imprisonment. The district court adopted the psr and sentenced
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Delgado to 120 months on the drug offenses, to run concurrently,
and sixty months consecutive on the firearms offense.
II
Delgado claims 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. Wilson, 81 F.3d
at 1305.
A defendant seeking to withdraw a guilty plea prior to
sentencing must demonstrate a “fair and just reason” for
withdrawal. See Fed. R. Crim. P. 11(d)(2)(b); United States v.
Bowman, 348 F.3d 408, 413 (4th Cir. 2003), cert. denied, 540 U.S.
126 (2004). In determining whether a fair and just reason exists,
the most important question is whether the Rule 11 hearing was
properly conducted, and the plea counseled and voluntary. Id. at
413-14. Other factors that may bear on whether withdrawal should
be allowed include:
(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).
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Here, the transcript of the Rule 11 proceeding
demonstrates compliance with the Rule and supports the district
court’s finding that Delgado’s guilty plea was counseled, knowing,
and voluntary. There was no credible assertion of legal innocence.
The delay of two and one-half months between the plea and Delgado’s
letter to the court weighs against permitting withdrawal. Nothing
in the record suggests that Delgado’s attorney was incompetent;
indeed, Delgado professed his satisfaction with his lawyer’s
services. Finally, Delgado entered his plea the morning his trial
was scheduled to begin; jury selection was completed at 7:30 p.m.
the previous evening. Allowing withdrawal of the plea would have
prejudiced the United States, which had spent significant time
preparing for trial, and inconvenienced the court, which had
already expended considerable time and resources on the case.
Therefore, the district court did not abuse its discretion in
denying the motion.
III
Although the district court rather than a jury determined
the amount of cocaine for which Delgado was held responsible at
sentencing, we conclude that Delgado’s sentence does not violate
the Sixth Amendment under United States v. Booker, 125 S. Ct. 738
(2005), and Blakely v. Washington, 542 U.S. 296 (2004). Quite
simply, Delgado admitted at the Rule 11 proceeding that he
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conspired to distribute and possessed with intent to distribute
more than five kilograms of cocaine. He accordingly was assigned
a base offense level of 32 at sentencing, representing at least
five, but less than fifteen, kilograms of cocaine. See U.S.
Sentencing Guidelines Manual § 2D1.1 (2001).
In Booker, the Court held that enhancing sentences based
on facts found by the court alone and not by the jury violated the
Sixth Amendment imperative that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or
a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” United States v. Booker, 125 S.
Ct. at 756 (citing Apprendi v. New Jersey, 530 U.S. 466, 490
(2000)). Because Delgado admitted that he was responsible for five
kilograms of cocaine, there was no Sixth Amendment violation.
IV
We accordingly affirm No. 04-4434. 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.
No. 04-4221 DISMISSED
No. 04-4434 AFFIRMED
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