UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4646
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY SHAMON WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00093-nkm-ALL)
Submitted: April 30, 2007 Decided: May 24, 2007
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles M. Henter, DAVIDSON & KITZMANN, PLC, Charlottesville,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jean B. Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Shamon Washington pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000), and possession of cocaine base (“crack”), in violation of
21 U.S.C. § 844 (2000). The district court sentenced him to
seventy months in prison on the firearm count and a concurrent
thirty-six months’ imprisonment on the drug count. Washington
appeals, challenging the district court’s denial of his motion to
withdraw his guilty plea. Finding no merit to his claim, we
affirm.
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). A defendant does not
have an absolute right to withdraw a guilty plea, even before
sentencing. United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). Rather, he must demonstrate that a “fair and just reason”
supports his request to withdraw his plea. Id. In deciding
whether to permit a defendant to withdraw his guilty plea, the
district court considers:
(1) whether the defendant has offered credible evidence
that his plea was not knowing or otherwise involuntary;
(2) whether the defendant has credibly asserted his legal
innocence; (3) whether there has been a delay between the
entry of the plea and filing of the motion; (4) whether
the defendant has had close assistance of counsel; (5)
whether withdrawal will cause prejudice to the
government; and (6) whether withdrawal will inconvenience
the court and waste judicial resources.
Id.
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Washington received an adequate Rule 11 hearing, creating
a strong presumption that his guilty plea was final and binding.
United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).
Washington argues, however, that the district court erred in
denying his motion to withdraw his guilty plea because his attorney
and the government erroneously led him to believe that his
sentencing guideline range would be lower than the guideline range
ultimately calculated in the presentence report (“PSR”). He
further argues that the district court relied on the wrong standard
because he claims that the district court denied his motion based
on its finding that he failed to credibly assert his legal
innocence.
Despite the erroneous advice of counsel concerning
Washington’s guideline range, at the plea hearing Washington was
informed of the maximum sentence he faced for each count, that the
court could not calculate his sentence until the probation officer
prepared the PSR, and that he could not withdraw his guilty plea if
his sentence was harsher than he expected. Washington acknowledged
that he understood and, with this knowledge, he pled guilty. We
find that Washington did not meet the heavy burden of showing that
counsel’s erroneous advice, given before the Rule 11 hearing,
established a fair and just reason for withdrawing his guilty plea.
United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992).
Furthermore, Washington’s claim that the district court relied on
the wrong legal standard is not supported by the record. We
therefore conclude that the district court did not abuse its
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discretion in denying Washington’s motion to withdraw his guilty
plea.
Accordingly, we affirm Washington’s convictions. 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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