United States v. McMahan

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4506

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RANDY MCMAHAN,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cr-00998-HFF-2)

Submitted: January 22, 2008 Decided: February 15, 2008

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Bradley Bennett, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. Leesa Washington, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Randy McMahan appeals his convictions and sentence of

life plus 120 months following his guilty plea to conspiracy to

possess with intent to distribute five kilograms or more of cocaine

and 1000 kilograms or more of marijuana, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), and 846 (2000), and carrying or using a

firearm in furtherance of a drug trafficking offense, in violation

of 18 U.S.C. § 924(c)(1)(A)(iii) (2000).* On appeal, McMahan’s

attorney filed a brief in accordance with Anders v. California, 386

U.S. 738 (1967), questioning whether the district court erred in

denying McMahan’s motion to withdraw his guilty plea, but

concluding there are no meritorious issues for review. McMahan

submitted a pro se supplemental brief raising several issues.

After a thorough review of the record, we affirm.

The district court’s denial of a motion to withdraw a

guilty plea is reviewed 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. United States v.

Moore, 931 F.2d 245, 248 (4th Cir. 1991). Rather the defendant

bears the burden of demonstrating that a “fair and just reason”

supports his request to withdraw his plea. Id. Factors considered

in determining whether a defendant has shown a fair and just reason

*
McMahan’s life sentence was the statutorily mandated minimum
sentence under 21 U.S.C. § 841(b)(1)(A) because of the prior drug
felonies to which McMahan stipulated in his plea agreement.

- 2 -
for withdrawing a guilty plea include: (1) whether the defendant

has offered credible evidence that the plea was not knowing or

voluntary; (2) whether the defendant credibly asserted his legal

innocence; (3) whether there has been a delay between the entry of

the plea and the filing of the motion; (4) whether the defendant

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.

Although all the factors in Moore must be given appropriate weight,

the central question is whether the Rule 11 colloquy was properly

conducted. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.

1995). This court closely scrutinizes the Rule 11 colloquy and

attaches a strong presumption that the plea is final and binding if

the Rule 11 proceeding is adequate. United States v. Lambey, 974

F.2d 1389, 1394 (4th Cir. 1992).

In moving to withdraw his guilty plea, McMahan asserted

no error with respect to the Rule 11 hearing. The district court

noted that it took McMahan’s plea and observed his demeanor at the

time, and that McMahan failed to produce any evidence or argument

that his plea was not knowing and voluntary. Indeed, at the plea

hearing, McMahan stated he was satisfied with counsel’s

performance, there were no promises or expectations that had not

been included in the plea agreement, and he was guilty of the

charged offenses. During the plea colloquy, the district court

- 3 -
properly informed McMahan of the rights he was forfeiting as a

result of his plea and the nature of the charges and penalties he

faced, determined the voluntariness of his guilty plea, disclosed

the terms of the plea agreement on the record, and determined there

was a sufficient factual basis for the plea. Accordingly, we

conclude there were no errors with respect to the Rule 11 plea

colloquy.

Moreover, as the district court also observed, McMahan

did not claim he was innocent of the charges. McMahan challenged

only the drug quantity to which he had earlier stipulated in the

plea agreement. His stipulation was reviewed during the plea

hearing, and McMahan expressed no objection.

None of the remaining factors weigh in McMahan’s favor,

as he had competent assistance of counsel throughout the

proceedings, and he moved to withdraw his guilty plea approximately

three months after the Rule 11 hearing. Because all the Moore

factors weighed against allowing McMahan to withdraw his plea, the

district court did not abuse its discretion in denying McMahan’s

motion to withdraw his guilty plea.

We have additionally reviewed all the issues McMahan

raises in his pro se supplemental brief regarding the validity of

his guilty plea and the predicate felonies qualifying him for the

enhanced penalty under 21 U.S.C. § 841(b)(1)(A). We find these

arguments to be without merit.

- 4 -
 In accordance with Anders, we have reviewed the entire

record for meritorious issues and have found none. Accordingly, we

affirm McMahan’s convictions and sentence. This 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 adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

- 5 -