UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4044
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWN HUSSEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-04-270)
Submitted: March 27, 2006 Decided: April 14, 2006
Before LUTTIG and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James F. Sumpter, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael Elston, Michael C.
Wallace, Sr., Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Shawn Hussey appeals his convictions and sentence to 151
months in prison and five years of supervised release following his
guilty plea to conspiring to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. § 846 (2000), and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000). Hussey contends the district court
erred under Fed. R. Crim. P. 11(b)(1)(G) by accepting his guilty
plea without adequately informing him of the nature of the charges
and abused its discretion by denying his pro se motion to withdraw
his guilty plea at sentencing. We affirm.
Prior to accepting a guilty plea the district court must
inform the defendant of, and determine that he understands, the
nature of each charge to which he is pleading. Fed. R. Crim. P.
11(b)(1)(G). In reviewing the adequacy of its compliance with Rule
11, we accord deference to the district court’s decision as to how
best to conduct the mandated colloquy. United States v. DeFusco,
949 F.2d 114, 116 (4th Cir. 1991). “Although the defendant must
receive notice of the true nature of the charge rather than a rote
recitation of the elements of the offense, the defendant ‘need not
receive this information at the plea hearing itself.’” Id. at 117
(citations omitted). The district court may consider whether a
written plea agreement exists and determine the plea is knowingly
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and intelligently made on the basis of information received by the
defendant prior to the plea hearing. Id.
Because Hussey raises this issue for the first time on
appeal, we review for plain error. See United States v. Vonn, 535
U.S. 55, 59 (2002). Thus, it is Hussey’s burden to show:
(1) error; (2) that was plain; (3) the error affected his
substantial rights; and (4) this court should exercise its
discretion to notice the error. See United States v. Martinez, 277
F.3d 517, 529 (4th Cir. 2002). To establish that his substantial
rights were affected, Hussey must demonstrate that absent the
error, he would not have entered his guilty plea. See id. at 532.
We may consider the entire record when determining the effect of
any error on Hussey’s substantial rights. See Vonn, 535 U.S. at
74-75.
Hussey appears to contend the district court failed to
comply with Rule 11(b)(1)(G) because it did not recite the elements
of the charged offenses at his plea hearing. However, we have
“repeatedly refused to script the Rule 11 colloquy” or “to require
the district courts to recite the elements of the offense in every
circumstance.” United States v. Wilson, 81 F.3d 1300, 1307 (4th
Cir. 1996). Hussey was informed of the charges in the criminal
information and the plea agreement. By sworn testimony, he
affirmed to the district court that he had discussed the charges
with counsel, understood the charges, and understood that the
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Government had to prove every element making each charge a crime.
Moreover, the district court properly determined that based on
Hussey’s stipulated statement of facts, the Government could have
proven beyond a reasonable doubt every element of the crimes.
Hussey fails to demonstrate that he did not understand the law in
relation to the facts of his case or that his admitted conduct did
not satisfy the elements of the crimes to which he pled guilty.
We also reject Hussey’s claim that the district court
erred by denying his pro se motion to withdraw his guilty plea. A
defendant may withdraw a guilty plea prior to sentencing if he “can
show a fair and just reason for requesting the withdrawal.” Fed.
R. Crim. P. 11(d)(2)(B). We review the district court’s denial of
a motion to withdraw a guilty plea for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). We have
identified six factors for determining whether to allow a defendant
to withdraw his guilty plea: (1) whether he has offered credible
evidence that his plea was not knowing or voluntary; (2) whether he
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 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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At sentencing, Hussey claimed his trial counsel
“intimidate[d] [him] with prison time” and he was “coerced into
signing the plea.” However, Hussey’s sworn statement during the
Rule 11 colloquy that he had not been threatened into pleading
guilty is strong evidence of the voluntariness of his plea. See
DeFusco, 949 F.2d at 119. In addition, a guilty plea is not
rendered involuntary merely because it was entered to avoid harsh
alternatives such as prosecution on additional charges. See
Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978). Thus, we find
Hussey’s guilty plea was knowing and voluntary. We further find
Hussey did not credibly assert his legal innocence, because he
offered no evidence casting doubt on his guilt as to any element of
either charge.
A defendant seeking to establish that he is entitled to
withdraw his plea because he did not receive close assistance of
counsel must demonstrate that counsel performed deficiently and
that, but for counsel’s errors, the defendant would not have pled
guilty and would have insisted on proceeding to trial. United
States v. Bowman, 348 F.3d 408, 416 (4th Cir. 2003). Our review of
the record convinces us Hussey did not demonstrate his attorney’s
advice to plead guilty was in any way deficient, or that but for
counsel’s errors, he would not have pled guilty but would have
insisted on going to trial.
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Accordingly, we affirm Hussey’s convictions and sentence.
We grant Hussey’s motion for leave to file a pro se supplemental
brief and find the issues he asserts therein meritless. We deny
his motion to relieve or substitute appellate counsel. 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
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