UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4574
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN CURTIS EWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Walter Dekalb Kelley,
Jr., District Judge. (4:07-cr-00069-WDK-FBS-2)
Submitted: March 23, 2009 Decided: April 23, 2009
Before KING, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Dana J. Boente,
Acting United States Attorney, Richard Cooke, Scott W. Putney,
Assistant United States Attorneys, Cameron Rountree, Third Year
Law Student, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Curtis Ewell appeals his conviction and 420-month
sentence for conspiracy to distribute fifty grams or more of
cocaine base, five hundred grams or more of cocaine, and heroin,
in violation of 21 U.S.C. § 841(a)(1) (2006), and use of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1) (2006). Ewell argues on appeal that
the district court erred in denying his motion to withdraw his
guilty plea, in finding that he breached his plea agreement, and
in overruling his objections to the court’s advisory sentencing
guidelines calculations. We affirm his conviction and dismiss
his appeal of his sentence.
I. Guilty Plea
“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. 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
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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). Under Rule
11(b)(1), the district court must address the defendant in open
court and inform him of the following: the nature of the charge;
any mandatory minimum sentence and the maximum possible
sentence; the applicability of the Sentencing Guidelines; the
court’s obligation to impose a special assessment; the
defendant’s right to an attorney; his right to plead not guilty
and be tried by a jury with the assistance of counsel; his right
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to confront and cross-examine witnesses; his right against self-
incrimination; and his right to testify, present evidence, and
compel the attendance of witnesses. The defendant also must be
told that a guilty plea waives any further trial and that his
answers at the proceeding may be used against him in a
prosecution for perjury. Under Rule 11(b)(2), the court must
address the defendant to determine that the plea is voluntary.
The court must require disclosure of any plea agreement under
Rule 11(c)(2) and determine a factual basis for the plea under
Rule 11(b)(3).
For the first time on appeal, Ewell argues that his
plea was not knowing and voluntary because he was under the
influence of medication for his bipolar disorder. This claim is
not properly before this court because it was not presented to
the district court when Ewell moved to withdraw his plea.
Before the district court, Ewell argued only that he was
innocent of some of the charged conduct to which he pled guilty
and was misled into accepting the plea agreement by counsel who
represented him at the time. Ewell’s alleged mistaken
impression regarding what conduct would ultimately determine his
sentencing guidelines range did not constitute a fair and just
reason for withdrawal of his plea, in light of his assertions at
the plea hearing that he understood his ultimate sentence would
be based in part upon the guidelines calculations and his assent
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to the truth of the statement of facts attached to the plea
agreement he signed. Ewell did not present any testimony from
his former counsel, or evidence other than his own testimony, at
the hearing on his motion to withdraw to corroborate his alleged
misunderstanding or his claims of ineffective assistance of
counsel. The district court did not abuse its discretion in
finding that Ewell did not credibly assert his innocence and
that his motion to withdraw his plea after a four-month delay
appeared to be based upon his disappointment with the
imprisonment range he faced under the guidelines.
II. Breach of Plea Agreement
This court reviews “a claim that a party has breached
a plea agreement under a bifurcated standard, reviewing the
district court’s factual findings for clear error, while
reviewing the district court’s application of principles of
contract interpretation de novo.” United States v. Bowe, 257
F.3d 336, 342 (4th Cir. 2001) (citation omitted).
The district court did not err in finding that Ewell
repudiated the statement of facts attached to the plea
agreement, and claimed he was not actually guilty of the
offenses he pled guilty to, and that these actions constituted a
breach of his plea agreement with the Government. As discussed
with respect to Ewell’s motion to withdraw his guilty plea, the
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district court’s finding that his motion to withdraw his guilty
plea was not simply an attempt to correct a previous
misunderstanding caused by counsel is not clearly erroneous.
III. Appeal Waiver
In his plea agreement, Ewell waived his right to
appeal any sentence below the statutory maximum. This court
reviews the validity of a waiver de novo, 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). Ewell does not
contest the validity of his waiver, beyond his argument that the
district court erroneously denied his motion to withdraw his
guilty plea. The issues Ewell raises on appeal regarding his
sentence are covered by the waiver because the sentence imposed
was below the statutory maximum.
For the reasons stated above, we affirm Ewell’s
conviction and the district court’s finding that he breached his
plea agreement, and dismiss his appeal of his 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 IN PART;
DISMISSED IN PART
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