UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4479
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRACY LYNN PETTY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00250-5)
Submitted: May 31, 2007 Decided: June 4, 2007
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, Arden, North Carolina, for Appellant. Gretchen
C.F. Shappert, United States Attorney, Thomas Tullidge Cullen,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tracy Lynn Petty pled guilty, pursuant to a written plea
agreement, to conspiracy to possess with intent to distribute
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).
The district court sentenced Petty to the statutory mandatory
minimum sentence applicable to the conviction, 240 months’
imprisonment. Petty challenges her conviction and sentence,
asserting on appeal that the district court erred in denying her
motion to withdraw her guilty plea. Petty contends that her plea
was not knowing and voluntary because it was premised on the fact
that her attorney and the prosecutor stated that she would be
sentenced pursuant to the sentencing guidelines.1 She claims that
the prosecutor made inconsistent statements as to the applicability
of the statutory mandatory minimum sentence, and that it was her
understanding that the statutory mandatory minimum sentence was
discretionary.
We reviewed for abuse of discretion the district court’s
denial of a motion to withdraw a guilty plea. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). Our review of the
record discloses that the district court properly determined that
Petty clearly was aware of the statutory mandatory minimum sentence
1
Pursuant to the federal Sentencing Guidelines, Petty would
have been subject to an advisory Guidelines range of 108 to 135
months’ imprisonment, but for the statutory mandatory minimum
twenty-year sentence applicable to her crime.
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and its implications at the time she pled guilty. The district
court carefully considered each of the factors set forth in United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), and properly
determined that Petty failed to meet her burden of demonstrating
that a “fair and just reason” supported her request to withdraw her
plea.2 Id.
Our review of the record reveals that the explicit terms
of the plea agreement, which terms were reviewed with Petty by the
court during her Fed. R. Crim. P. 11 proceeding, provided that the
statutory mandatory minimum sentence of twenty years applied to
Petty’s crime, that no recommendations or agreements by the United
States were binding on the sentencing court, and that the district
court would impose a sentence no lower than the statutory minimum.
Further, Petty attested during the Rule 11 hearing that she had
reviewed the terms of the plea agreement with her attorney, that
she understood the terms of the agreement, as reviewed with her by
the court, that she was satisfied with and grateful for the
services of her attorney and his willingness to answer all her
2
Specifically, the district court determined that Petty failed
to offer credible evidence that her plea was not knowing and
voluntary, that she had not credibly asserted her legal innocence,
that there had been a significant five-month delay between Petty’s
plea and her subsequent motion to withdraw, that Petty had received
close assistance of competent counsel, that the Government would be
prejudiced by a withdrawal, and that a withdrawal of the plea would
waste judicial resources.
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questions,3 that she was guilty of the crime to which she was
pleading guilty, and that she was entering into the plea freely and
voluntarily. Petty is bound by the statements she made at her Rule
11 hearing. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Accordingly, we affirm the district court’s denial of
Petty’s motion to withdraw her plea, and affirm her 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
3
To the extent Petty seeks to raise here a claim that her
attorney was ineffective, such a claim is not cognizable on direct
review unless the record conclusively establishes ineffective
assistance of counsel, which this record does not. United States
v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
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