UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5131
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTONIO MOSCOL,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00003-F-1)
Submitted: September 15, 2008 Decided: October 8, 2008
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
R. Clarke Speaks, SPEAKS LAW FIRM PC, Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On January 3, 2007, Antonio Moscol was charged with
two counts of distribution of cocaine base, in violation of 21
U.S.C.A. § 841(b) (West 2000 & Supp. 2008). The dates of
offense were June 8, 2006 and June 28, 2006, respectively.
Moscol pled guilty, without the benefit of a plea agreement, on
March 5, 2007. However, on August 30, 2007, Moscol filed a
motion to withdraw his guilty plea. On October 19, 2007, the
district court entered an order denying Moscol’s motion. On
November 19, 2007, the district court sentenced Moscol to 108
months’ imprisonment on both counts to be served concurrently.
Moscol timely noted his appeal.
Moscol first argues on appeal that the district court
erred in denying his motion to withdraw his guilty plea.
According to Moscol, it was unreasonable for the district court
to deny his motion to withdraw his guilty plea because there was
uncertainty regarding the quantity of crack he sold and because
the Government would not have suffered prejudice had his motion
been granted. Moscol’s claim is without merit.
This court reviews a district court’s refusal to allow
a defendant to withdraw a guilty plea for abuse of discretion.
United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). A
defendant may withdraw a guilty plea before his sentence is
imposed if “the defendant can show a fair and just reason for
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requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Six
factors to be considered in granting or denying a motion to
withdraw a guilty plea are:
(1) whether the defendant has offered credible
evidence that his plea was not knowing and voluntary,
(2) whether the defendant has credibly asserted his
legal innocence, (3) whether there has been a delay
between the entering of the plea and the filing of the
motion, (4) whether defendant has 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.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
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). A voluntary and
intelligent plea of guilty “is an admission of all the elements
of a formal criminal charge . . . and constitutes an admission
of all material facts alleged in the charge.” United States
v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (quotations
omitted).
Prior to accepting Moscol’s guilty plea, the district
court conducted a thorough Rule 11 hearing, during which the
district court explained to Moscol the elements of the two
counts in the indictment and the potential penalties Moscol
faced upon conviction. Moscol indicated to the court that he
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understood the elements of the offenses and the potential
penalties he faced. The district court then asked Moscol
whether he distributed more than five grams of crack on June 8
and 28, 2006, to which Moscol replied in the affirmative.
In the district court, Moscol had argued that,
although he received the first measurement of drug weight taken
by the Raleigh Police Department (“RPD”) and the measurement of
drug weight taken by the City County Bureau of Identification
(“CCBI”) prior to pleading guilty, he would not have pled guilty
if he had received a second measurement of drug weight conducted
by the RPD. The district court properly characterized Moscol’s
argument as “specious.” The minor discrepancies reflected by
the final RPD measurements had no bearing on Moscol’s guilt or
innocence as they were not material to any element of his
crimes. Also, the drug weight discrepancies did not affect his
statutory sentencing range, which was determined by the
threshold quantities alleged in the indictment and admitted by
Moscol, rather than the quantities as measured by the RPD and
CCBI. Finally, the last measurements by the RPD had no effect
on Moscol’s sentencing guidelines range as the district court
used the lower and more accurate measurements taken by the CCBI
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in calculating Moscol’s advisory guidelines range.1 Accordingly,
Moscol’s claim is without merit.2
Moscol next argues that there was insufficient
evidence to support the district court’s determination of drug
weight. A district court’s determination of drug quantity is a
factual finding, which this court reviews for clear error.
United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).
This deferential standard of review requires reversal only if
this court is “left with the definite and firm conviction that a
mistake has been committed.” United States v. Stevenson, 396
F.3d 538, 542 (4th Cir. 2005)(quoting Anderson v. Bessemer City,
470 U.S. 564, 573 (1985)). Agent Bommer testified that she
weighed the crack sold by Moscol without its packaging and using
calibrated scales and that the drugs weighed 27.9 grams and 25.7
grams respectively. The district court was entitled to credit
her testimony. Moreover, Moscol’s entire argument on appeal is
1
CCBI forensic chemist Amy Bommer testified that in most
cases, the weight as measured by the police does not equal the
weight determined by the CCBI because officers who initially
take possession of the drugs usually weigh them in their
packaging and do not use properly calibrated scales. According
to Agent Bommer’s testimony, the differences in weight are
easily attributable to the fact that Bommer did not weigh the
drugs in their packaging, and she used a certified and properly
calibrated scale.
2
The Government, in its written response to Moscol’s motion,
admitted that it would not suffer significant prejudice if
Moscol’s motion were granted.
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based on what may have occurred rather than on facts in the
record. Accordingly, his claim is without merit. We therefore
deny his motion to supplement his appellate brief and his motion
to file a pro se supplemental brief and affirm the judgment of
the district court. We dispense with oral argument as 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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