UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4765
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE GARNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:04-cr-01022-PMD)
Submitted: May 23, 2008 Decided: July 8, 2008
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant. Kevin McDonald, Acting United States
Attorney, Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee Garner pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C.A. §§ 922(g)(1), 924(e) (West 2000
& Supp. 2008), and was sentenced as an armed career criminal to a
term of 210 months imprisonment. Although the plea agreement
contained a provision in which Garner waived his right to appeal
his conviction or sentence, Garner now seeks to appeal the district
court’s denial of his motion to withdraw his guilty plea. The
government has moved to dismiss the appeal based on the waiver. We
deny the motion to dismiss, but affirm the district court’s denial
of Garner’s motion to withdraw his guilty plea.
In April 2007, Garner appeared before the district court
to enter a guilty plea conditioned on the state’s willingness to
drop state charges pending against him. Although the state had
agreed to drop the charges, Garner changed his mind and refused to
plead guilty. A month later, he entered a guilty plea pursuant to
an agreement in which the government agreed to recommend to the
state solicitor that state charges relating to the instant offense
and an alleged carjacking and kidnapping be dropped. The state
solicitor appeared in person and confirmed that the state was
dropping the charges, but retaining the option to reindict Garner
if for any reason his federal guilty plea should fail. The
district court then conducted the colloquy required by Rule 11 of
- 2 -
the Federal Rules of Criminal Procedure, and accepted Garner’s
guilty plea.
After accepting Garner’s guilty plea, the court inquired
about his bond situation. The state solicitor expressed concern
about releasing Garner, given his history of bond violations. The
court then revoked Garner’s federal bond. Garner immediately asked
to withdraw his guilty plea, indicating that he had expected to be
released. The district court denied his motion, and denied his
renewed motion at sentencing.
On appeal, we first deny the government’s motion to
dismiss the appeal based on Garner’s waiver of appeal rights in his
plea agreement. We agree with the government that the issue Garner
seeks to raise on appeal is within the scope of the waiver. In
challenging the district court’s denial of his motion to withdraw
his guilty plea, Garner is contesting his conviction. See United
States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007) (quoting United
States v. Elliott, 264 F.3d 1171, 1174 (10th Cir. 2001)).*
However, we conclude that the waiver is not enforceable.
A defendant may waive the right to appeal if the waiver is knowing
and intelligent. United States v. Blick, 408 F.3d 162, 169 (4th
Cir. 2005). To determine whether a waiver is knowing and
*
Garner relies on an unpublished case from this Circuit,
United States v. Malik, 112 F. App’x 894, 894-95 (4th Cir. 2004),
to support his position, but the defendant in Malik waived only the
right to appeal his sentence.
- 3 -
intelligent, this court examines the background, experience, and
conduct of the defendant. United States v. Broughton-Jones, 71
F.3d 1143, 1146 (4th Cir. 1995). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both
valid and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). The question of whether a defendant validly
waived his right to appeal is a question of law that this court
reviews de novo. Blick, 408 F.3d at 168. Here, the waiver
provision was read by the government in its summary of the plea
agreement, but the district court did not explain the waiver to
Garner or discuss it with him to determine whether he understood
it. Particularly in a case like Garner’s, where the defendant has
a history of erratic behavior and a question exists about his
mental state, a discussion of the waiver provision is necessary to
establish that the defendant is knowingly and voluntarily
relinquishing his appellate rights. Because this discussion did
not occur, we cannot conclude that Garner’s waiver was valid. We
therefore deny the government’s motion to dismiss the appeal.
On the merits, Garner contends that his plea was not
knowing and voluntary because it was his understanding that his
state charges would be dropped and the state would have no further
interest in prosecuting him, and that, in addition, his federal
- 4 -
bond would not be revoked. In effect, he claims his attorney led
him to believe that his guilty plea would result in his release on
a federal bond. He also asserted, in a letter to the court before
he was sentenced, that he did not remember possessing a gun when he
was arrested because he was “not in the right state of mind” at the
time. A defendant may withdraw a guilty plea before sentencing if
he can show a “fair and just reason” for doing so. Fed. R. Crim.
P. 11(d)(2)(B). “[A] ‘fair and just’ reason . . . is one that
essentially challenges . . . the fairness of the Rule 11 proceeding
. . . .” United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.
1992) (en banc). This court reviews the 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). Courts consider six
factors in determining whether to permit the withdrawal of a guilty
plea:
(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
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.
Ubakanma, 215 F.3d at 424 (citing United States v. Moore, 931 F.2d
245, 248 (4th Cir. 1991) (footnote omitted)). An appropriately
conducted Rule 11 proceeding, however, “raise[s] a strong
presumption that the plea is final and binding.” Lambey, 974 F.2d
- 5 -
at 1394. Here, the record reveals that the district court complied
with Rule 11. Only one Moore factor weighs in Garner’s favor: his
speed in asking to withdraw his guilty plea when he learned he
would be continued in custody. His other claims--that he did not
understand that he would remain in custody, that he was legally
innocent, and that he did not receive the close assistance of
competent counsel--are either contradicted by his sworn statements
at the Rule 11 hearing or by other evidence in the record, such as
defense counsel’s remonstrance that release was not part of his
plea agreement. “[W]hen a defendant says he lied at the Rule 11
colloquy, he bears a heavy burden in seeking to nullify the
process.” United States v. Bowman, 348 F.3d 408, 417 (4th Cir.
2003). We conclude that the district court did not abuse its
discretion in denying Garner leave to withdraw his guilty plea.
We therefore affirm the conviction imposed by the
district court. We deny the government’s motion to dismiss the
appeal. 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
- 6 -