UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4541
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ARNOLD GUNNINGS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:04-cr-00014)
Submitted: February 14, 2007 Decided: March 29, 2007
Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence W. Hewitt, JAMES MCELROY & DIEHL, PA, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Arnold Gunnings, Jr. appeals his conviction and
sentence to 46 months in prison and three years of supervised
release following his guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g) (2000).
Gunnings contends the district court erred in denying his motion to
withdraw his guilty plea, because it was unknowing, involuntary,
and based on the lack of close assistance of competent counsel.
Finding no error, we affirm.
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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A properly conducted guilty plea colloquy under Fed. R.
Crim. P. 11 raises a strong presumption that the plea is final and
binding. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.
1992) (en banc). 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). A defendant seeking to establish that he
is entitled to withdraw his plea because he did not receive close
assistance of counsel must show 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).
Gunnings argues the district court erred in finding his
plea was knowingly and voluntarily entered, because he presented
evidence that his former attorney failed to sufficiently explain
the consequences of pleading guilty or provide him with a formal
written plea agreement prior to the Rule 11 hearing. He further
contends the court erred in finding he received the close
assistance of competent counsel, because he involuntarily entered
a guilty plea to a crime he asserts he did not commit based on the
threat that he would be prosecuted on an unrelated charge.
Based on our review of the record, we conclude the
district court did not abuse its discretion in denying Gunnings’s
motion to withdraw his guilty plea. Because there was no challenge
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to the sufficiency of the district court’s Rule 11 hearing, the
court properly recognized there was a strong presumption that the
plea was final and binding. Moreover, the evidence supported the
district court’s findings that Gunnings’s plea was not unknowing or
involuntary but rather a calculated decision that it was in his
best interest to plead guilty, and he received the close assistance
of competent counsel in entering the plea.
Accordingly, we affirm Gunnings’s conviction and
sentence. 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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