UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4540
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICE MOUZON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:06-cr-00453-WDQ)
Submitted: September 25, 2008 Decided: October 10, 2008
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John L. Machado, LAW OFFICE OF JOHN L. MACHADO, Washington, D.C.,
for Appellant. Rod J. Rosenstein, United States Attorney, Steven
H. Levin, Jason M. Weinstein, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Mouzon challenges the district court’s acceptance
of his guilty plea, pursuant to Fed. R. Crim. P. 11, and the denial
of his request to withdraw the plea at sentencing. Mouzon pleaded
guilty to possession with intent to distribute cocaine (Count One),
in violation of 21 U.S.C. § 841(a)(1) (2000), and possession of a
firearm in furtherance of a drug-trafficking crime (Count Two), in
violation of 18 U.S.C. § 924(c)(1)(A)(I) (2000). He was sentenced
to 248 months’ imprisonment in accordance with a stipulation in his
plea agreement, pursuant to Fed. R. Crim. P. 11(c)(1)(C), that such
sentence was appropriate.
Mouzon argues on appeal that the Government did not
present a sufficient factual basis for his guilty plea because the
plea colloquy did not include any evidence that he intended to
distribute cocaine. He also contends that the district court erred
in denying his request to withdraw his guilty plea because, when he
entered his plea at the Rule 11 hearing, he believed the validity
of his prior state-court convictions would be investigated by the
court, possibly resulting in a lower sentence in this case.
“A defendant has no absolute right to withdraw a guilty
plea.” United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003)
(internal citation and quotation marks omitted). Once the district
court has accepted a defendant’s guilty plea, it is within the
court’s discretion whether to grant a motion to withdraw it.
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United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). The
defendant bears the burden of showing a “fair and just reason” for
withdrawing his guilty plea. 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).
In deciding whether to permit a defendant to withdraw his
guilty plea, a 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
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.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)
(citing United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991))
(footnote omitted). However, an appropriately conducted Rule 11
proceeding “raise[s] a strong presumption that the plea is final
and binding.” Lambey, 974 F.2d at 1394; see also United States v.
Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).
Rule 11(b)(3) “ensures that the court make clear exactly
what a defendant admits to, and whether those admissions are
factually sufficient to constitute the alleged crime.” United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). “Rule 11
does not require the judge to establish through colloquy that a
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factual basis exists for the plea. The court may conclude that a
factual basis exists from anything that appears on the record.”
Id. (emphasis in original) (citation omitted). The court “need
only be subjectively satisfied that there is a sufficient factual
basis for a conclusion that the defendant committed all of the
elements of the offense.” United States v. Mitchell, 104 F.3d 649,
652 (4th Cir. 1997).
A district court may not conclude that there is a factual
basis for a plea if an essential element of the offense is not
admitted by the defendant or established in the evidence presented
by the Government. United States v. Mastrapa, 509 F.3d 652, 660
(4th Cir. 2007). “The elements of possession with intent to
distribute of a narcotic controlled substance are as follows: (1)
possession of the narcotic controlled substance, (2) knowledge of
the possession, and (3) intent to distribute the narcotic
controlled substance.” United States v. Randall, 171 F.3d 195, 209
(4th Cir. 1999). “Intent to distribute may be inferred from
possession of . . . a quantity of drugs larger than needed for
personal use.” United States v. Fisher, 912 F.2d 728, 730 (4th
Cir. 1990). We have held that possession of a quantity of cocaine
base slightly over five grams, when combined with testimonial
evidence, was sufficient to support an inference of intent to
distribute. United States v. Lamarr, 75 F.3d 964, 973 (4th Cir.
1996). Possession of large amounts of cash and firearms
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constitutes “additional circumstantial evidence of . . .
involvement in narcotics distribution.” Fisher, 912 F.2d at 731.
Possession of a scale with drug residue on it also constitutes
circumstantial evidence of an intent to distribute narcotics. See
United States v. Harris, 31 F.3d 153, 157 (4th Cir. 1994).
We hold that the district court properly found an
adequate factual basis at the Rule 11 hearing to support an
inference that Mouzon intended to distribute cocaine. The
Government stated that the evidence at trial would have shown that
248 grams of cocaine, over $7000 in cash that constituted drug
proceeds, a digital scale with cocaine residue on it, and a firearm
that the Government could prove Mouzon used in furtherance of drug
trafficking, were discovered in Mouzon’s possession. Mouzon did
not dispute that the evidence would prove any of these facts. The
amount of cocaine discovered in Mouzon’s possession was well above
the five grams of cocaine that this court held supported an
inference of intent to distribute in Lamarr, and the large amount
of cash, firearm, and scale with drug residue on it constitute
circumstantial evidence of an intent to distribute narcotics. The
district court also explained to Mouzon that he was pleading guilty
to possession of cocaine with the intent to distribute, not merely
for personal use, and Mouzon indicated that he understood the
nature of the charge and admitted his guilt.
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The district court also properly summarized the portion
of the plea agreement in which the parties stipulated that a
sentence of 248 months was the appropriate disposition of this
case, and Mouzon indicated that he understood that portion of the
agreement. At the conclusion of the Rule 11 hearing, Mouzon
informed the court that he was represented by an attorney who was
disbarred during the course of the proceedings when he received two
or three of his prior drug trafficking convictions in state court.
The district court stated that the prior convictions would be
“investigated” but did not indicate that Mouzon could receive a
sentence of less than 248 months’ imprisonment as a result of that
investigation. The district court properly conducted the Rule 11
hearing and did not mislead Mouzon by commenting that his prior
convictions would be “investigated.” Because Mouzon has failed to
show that any of the Moore factors weighed in favor of granting his
motion to withdraw his plea, the district court properly denied it.
Accordingly, we affirm the district court’s judgment. 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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