UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4941
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO DELREA SMITH,
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. (3:05-cr-00013)
Submitted: April 23, 2008 Decided: May 7, 2008
Before WILLIAMS, Chief Judge, and NIEMEYER and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Tolly A. Kennon, III, KENNON & ASSOCIATES, 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Unpublished opinions are not binding precedent in this circuit.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:
Antonio Delrea Smith appeals his convictions and 200-
month sentence for possession with intent to distribute fifty or
more grams of cocaine base, and using and carrying a firearm during
and in relation to a drug trafficking crime. Finding no reversible
error, we affirm.
Smith first claims that the district court abused its
discretion in denying his motion to withdraw his guilty plea. 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. Fed. R. Crim. P. 11(d)(2)(B).
Factors considered in determining whether a defendant has
shown a fair and just reason for withdrawing a guilty plea include:
(1) whether the defendant offered credible evidence that the plea
was not knowing or voluntary; (2) whether the defendant credibly
asserted his legal innocence; (3) the delay, if any, 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 would cause prejudice to the Government; and (6) whether
withdrawal would inconvenience the court and waste judicial
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resources. Moore, 931 F.2d at 248. 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). Based on
our review of the record, we find that the magistrate judge
conducted a thorough and adequate Rule 11 colloquy and conclude
that Smith knowingly and voluntarily entered his guilty plea. We
further find that the district court properly considered the Moore
factors and concluded that they weighed against allowing Smith to
withdraw his guilty plea. Accordingly, no abuse of discretion
occurred.
Smith next argues that the district court abused its
discretion in denying his motion to strike Agent Cheramie’s
testimony. He also claims that the district court abused its
discretion in refusing to issue an order requiring the appearance
of a records supervisor from the Sheriff’s Department to give
testimony and evidence regarding the methods of acquiring jail
logs. A district court’s evidentiary rulings are entitled to
substantial deference and will not be reversed absent a clear abuse
of discretion. That discretion is abused only when the district
court acted arbitrarily or irrationally. See United States v.
Moore, 27 F.3d 969, 974 (4th Cir. 1994). We agree with the
district court that the general allegations raised by Smith are
insufficient to support an allegation of perjury. We therefore
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find that the district court did not abuse its discretion in
denying Smith’s motion to strike or in refusing to issue the order
requested by Smith.
Smith next claims that the district court committed
reversible error in failing to grant his request for a variance
based on the severity of sentences for crack cocaine offenses as
compared to powder cocaine offenses. The Government responds that
Smith expressly waived the right to appeal his sentence in his plea
agreement.
We review the validity of a waiver de novo, United States
v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000), and will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). A waiver is valid if the
defendant’s agreement to the waiver was knowing and voluntary.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United
States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). Generally,
if a district court fully questions a defendant regarding his
waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy,
the waiver is valid. Wessells, 936 F.2d at 167-68.
Based on our review of the record, we find that Smith
knowingly and intelligently waived the right to appeal his
sentence. We note that Smith waived all rights to contest his
conviction and/or sentence except for: (1) claims of ineffective
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assistance of counsel; (2) claims of prosecutorial misconduct; and
(3) sentencing claims “on the basis that one or more findings on
guideline issues were inconsistent with the explicit stipulations
. . . in the plea agreement . . . or on the basis of an
unanticipated issue that arises during the sentencing hearing and
which the District Judge finds and certifies to be of such an
unusual nature as to require review by the Fourth Circuit.” Smith
does not contest his sentence on the basis that it is inconsistent
with the explicit stipulations contained in his plea agreement or
on the basis of an unanticipated issue that has been certified for
review by the district court. We therefore find that Smith’s valid
and enforceable waiver of appellate rights precludes review of his
sentencing claim.
Finally, Smith contends that former counsel failed to
investigate the merits of his case in order to present an effective
defense, failed to explain the changes against him, failed to
inform him of the penalties he faced, and “required” him to sign a
plea agreement. Claims of ineffective assistance of counsel are
generally not cognizable on direct appeal. United States v. King,
119 F.3d 290, 295 (4th Cir. 1997). Instead, to allow for adequate
development of the record, a defendant generally must bring his
ineffective assistance claims in a motion under 28 U.S.C. § 2255
(2000). See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th
Cir. 1994). An exception exists where the record conclusively
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shows ineffective assistance. United States v. Baldovinos, 434
F.3d 233, 239 (4th Cir. 2006). Based on our review of the record,
including the district court’s hearing on Smith’s request for new
counsel and Smith’s responses at his Rule 11 colloquy, we find that
the record does not conclusively show that former counsel rendered
ineffective assistance. Accordingly, this claim is not cognizable
on direct appeal.
We therefore affirm Smith’s convictions 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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