UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4846
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID CARL THOMPSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-477)
Submitted: August 10, 2005 Decided: September 15, 2005
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Michael F. Joseph, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Carl Thompson, Jr., pled guilty to one count of
possession with intent to distribute crack cocaine, in violation of
21 U.S.C. § 841(a)(1) (2000), and one count of possession of a
firearm during a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(a)(i) (2000), and was sentenced to 322 months in
prison. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising three issues but stating
that, in his opinion, there are no meritorious issues for appeal.
Thompson was advised of his right to file a pro se informal brief,
but did not file such a brief. The Government argues that this
court must enforce the waiver-of-appellate rights provision in
Thompson’s plea agreement. We agree and dismiss the appeal.
Thompson signed a written plea agreement containing the
following provision:
[Thompson] expressly waives the right to appeal the
conviction and whatever sentence is imposed on any
ground, including any appeal right conferred by Title 18,
United States Code, Section 3742(a), . . . excepting the
defendant’s right to appeal based upon grounds of (1)
ineffective assistance of counsel, (2) prosecutorial
misconduct not known to the defendant at the time of the
defendant’s guilty plea, (3) a sentence in excess of the
statutory maximum, and (4) a sentence based on an
unconstitutional factor, such as race, religion, ethnic
origin and gender.
The plea agreement set forth the minimum and maximum sentence that
Thompson faced and made clear that the sentencing guidelines
applied and that the court would apply a sentence within those
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guidelines unless there was a basis for departure. Thompson
admitted that he was guilty of the offenses charged and that the
Government could prove his guilt if the case proceeded to trial.
Thompson and his attorney signed the agreement. By
signing, Thompson acknowledged that he had read the agreement, had
reviewed it with his lawyer, understood it, and voluntarily agreed
to it. Thompson also testified at the plea hearing that he was
voluntarily entering into the agreement and that he was in fact
guilty.
At his Fed. R. Crim. P. 11 hearing, the district court
ascertained that Thompson was twenty-nine years old and had a tenth
grade education. Thompson was not under the influence of drugs or
alcohol. The court identified the rights that Thompson waived by
not going to trial, and specifically mentioned the right to appeal.
The court stated, “you give up any appeal right in this case in
exchange for the government’s dismissal of the other charges. Do
you understand this, sir?” Thompson stated that he did. The
district court concluded that the plea was knowingly and
voluntarily entered and accepted Thompson’s guilty plea.
On July 14, 2004, Thompson moved to change his plea to not
guilty. He alleged that his attorney did not adequately represent
him and forced him into pleading guilty. The court held a hearing
on August 5, 2004, and Thompson testified that he pled guilty in
April because he was concerned about his daughter’s safety after
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his family received threatening phone calls. He disputed the
inculpatory statements he made at the time of his arrest. He
stated that he was not truthful when he testified at the plea
hearing that he was entering into the plea voluntarily and that no
one had threatened or coerced him into taking the plea. He also
disputed the facts to which he stipulated in the factual basis for
his plea, with the exception of possession of two firearms. The
court denied the motion. The court sentenced Thompson to 266
months of imprisonment on the possession with intent to distribute
count and a consecutive sixty-month sentence on the firearms count.
In the Anders brief, counsel contends that the district
court abused its discretion in denying Thompson’s motion to
withdraw his plea, that the appeal waiver provision was unknowingly
made in light of United States v. Booker, 125 S. Ct. 738 (2005),
and that resentencing is required under Booker because the district
court contemplated sentencing under mandatory sentencing
guidelines. The Government replies that Thompson waived his right
to appeal.
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. See Fed. R. Crim. P. 11(d)(2)(B). “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
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States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003), cert. denied,
540 U.S. 1226 (2004). This court reviews the denial of a motion to
withdraw a guilty plea for abuse of discretion. United States v.
Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).
Ordinarily, if the Rule 11 colloquy was properly conducted,
and the plea counseled and voluntary, the defendant will have “a
very limited basis upon which to have his plea withdrawn.” Bowman,
348 F.3d at 414. Other factors that bear on whether there exists
a fair and just reason to withdraw a plea 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.
Id. at 414 (quoting United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991)).
We conclude that the district court did not abuse its
discretion in denying Thompson’s motion to withdraw his plea. Most
importantly, the transcript of the Rule 11 proceeding supports the
district court’s conclusion that Thompson, who had competent
counsel, entered his plea knowingly and voluntarily. The charges
against Thompson, the rights that he would waive by pleading
guilty, and the penalties that he faced were explained to him, and
he testified under oath that he understood. In addition, he
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expressed satisfaction with his lawyer, with whom he had discussed
the case. There is no credible assertion of legal innocence. The
delay of three months between Thompson’s plea and his motion
requesting that he be allowed to withdraw his plea further weighs
against a grant of withdrawal. There is nothing in the record to
suggest that Thompson had incompetent counsel throughout the plea
proceedings; indeed, he claimed to be fully satisfied with his
attorney’s services. The district court, therefore, did not abuse
its discretion in denying the motion to withdraw.
Thompson’s challenge to the waiver of appellate rights
provision in his plea agreement is governed by our recent decision
in United States v. Blick, 408 F.3d 162 (4th Cir. 2005). The issue
in Blick was whether a waiver-of-appellate rights provision in a
plea agreement was enforceable after the Supreme Court’s decision
in Booker. We employed a two-part analysis to decide the issue.
First, we considered whether the waiver was knowing and voluntary.
Having decided that it was, we asked whether the issues raised on
appeal were within the scope of that motion. They were, and the
appeal was subject to dismissal. Blick, 408 F.3d at 164.
This court reviews de novo the validity of a waiver.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Whether
a waiver of the right to appeal is knowing and intelligent depends
upon the facts and circumstances surrounding its making, including
the defendant’s background, experience, and conduct. United
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States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). A waiver is
ineffective if the district court fails to question the defendant
about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.
1991), unless other evidence in the record shows that the waiver
was informed and voluntary. Davis, 954 F.2d at 186.
Here, Thompson’s waiver was clearly knowing and
voluntary. He was twenty-nine, with a tenth-grade education, and
not under the influence of drugs or alcohol when he entered his
plea. The district judge questioned him about the waiver of his
appellate rights, and Thompson stated that he understood what
rights he was waiving. The details of the waiver were clearly set
forth in the written plea agreement, which Thompson had read,
discussed with his attorney, and understood.
As required by Anders, we have reviewed the entire
record on appeal and have found no meritorious issues for appeal.
We therefore dismiss the appeal. The court requires that counsel
inform his 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 argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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