UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4808
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANKIE CORNELL ELLIS, a/k/a Nitty,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:07-cr-00026-BR-1; 5:07-cr-00060-BR-1)
Submitted: July 31, 2009 Decided: August 14, 2009
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Frankie Cornell Ellis pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006), and
conspiracy to possess with intent to distribute and distribute
fifty grams or more of cocaine base (crack), 21 U.S.C. § 846
(2006). He was sentenced as a career offender to a term of
262 months imprisonment for the conspiracy and to the ten-year
statutory maximum sentence for the firearm offense. Ellis
appeals his conviction and sentence, contending that the
district court failed to comply with Fed. R. Crim. P. 11 when it
accepted his guilty plea and abused its discretion when it
denied his motions to withdraw his guilty plea and for new
counsel. He also raises a number of issues concerning his
sentence. We find that the district court complied with Rule 11
in accepting Ellis’ guilty plea and did not abuse its discretion
when it denied his motions to withdraw his guilty plea and for
substitution of counsel. We therefore affirm his conviction.
Because Ellis’ waiver was knowing and voluntary, we dismiss his
appeal of his sentence.
Ellis’ plea agreement provided that he “waived
knowingly and expressly the right to appeal whatever sentence is
imposed on any ground, including any appeal pursuant to
18 U.S.C. § 3742[.]” During the Rule 11 colloquy, the district
court summarized the terms of the plea agreement, including the
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waiver provision, and informed Ellis about the statutory maximum
and minimum sentence he could receive. Ellis acknowledged that
he had conspired with others to possess with intent to
distribute and distribute fifty grams or more of crack and that
he knowingly possessed a firearm after being convicted of a
felony.
Despite the waiver, Ellis challenges his sentence on
multiple grounds. A defendant may waive the right to appeal if
that waiver is knowing and intelligent. United States v. Blick,
408 F.3d 162, 169 (4th Cir. 2005). The question of whether a
defendant validly waived his right to appeal is a question of
law that this Court reviews de novo. Id. at 168. The district
court brought the waiver provision to Ellis’ attention during
the guilty plea hearing when he summarized the plea agreement.
Ellis addresses the waiver only in his reply brief, where he
claims that his waiver was involuntary because he was not
satisfied with his counsel’s representation. However, when
Ellis entered his guilty plea, he stated that he was satisfied
with his attorney’s services. Our review of the record leads us
to conclude that Ellis’ waiver of his right to appeal his
sentence was knowing and voluntary.
Ellis’ motion to withdraw his guilty plea served to
preserve the issue of the adequacy of the Fed. R. Crim. P. 11
hearing. United States v. Martinez, 277 F.3d 517, 525-26
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(4th Cir. 2002). He contends that neither the district court
nor his attorney fully informed him about the possible sentence
he might receive. The ineffective assistance claim is not one
which may be raised on direct appeal, given that the record does
not conclusively establish that defense counsel was deficient in
this respect. United States v. Baldovinos, 434 F.3d 233, 239
(4th Cir. 2006). Further, we conclude that the district court
informed Ellis about the statutory sentence for each count and
fully compiled with Rule 11 in accepting his guilty plea.
We review the district court’s denial of Ellis’ motion
to withdraw his guilty plea for abuse of discretion. United
States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). 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.
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).
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Ellis contends that his guilty plea was involuntary
because he was unhappy with his attorney’s representation and
pled guilty to the conspiracy count on her advice, even though
he was not guilty of conspiracy. However, in light of the
district court’s full compliance with Rule 11 in accepting
Ellis’ guilty plea, Ellis has not “offered credible evidence
that his plea was not knowing or otherwise involuntary.”
Ubakanma, 215 F.3d at 424. Moreover, Ellis informed the
district court during the plea colloquy that he was satisfied
with his attorney and had not been threatened or coerced to
plead guilty, and his statements at the plea hearing indicated
that he entered the plea knowingly and voluntarily. Blackledge
v. Allison, 431 U.S. 63, 74 (1977); Fields v. Attorney Gen., 956
F.2d 1290, 1299 (4th Cir. 1992) (“Absent clear and convincing
evidence to the contrary, a defendant is bound by the
representations he makes under oath during a plea colloquy.”).
Ellis does not credibly assert his legal innocence.
He states that there was no evidence he conspired with others;
however, the presentence report contains information from a
confidential informant who observed Ellis weighing half a
kilogram of crack with two other men. The motion was not timely
because it was filed seven months after he entered his guilty
plea. See Moore, 931 F.2d at 248 (finding that six-week delay
militated against withdrawal of plea). Ellis’ assertion that he
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lacked close assistance of counsel is the only Moore factor that
might weigh in his favor, as it is clear from the record that he
had differences with his attorney. However, his dissatisfaction
did not surface until long after his guilty plea, when he
reviewed the presentence report’s recommendation for a career
offender sentence. Finally, allowing Ellis to withdraw his plea
likely would have prejudiced the government and inconvenienced
the court due to the passage of time. We are satisfied that the
district court did not abuse its discretion in denying Ellis’
motion to withdraw his guilty plea. Ubakanma, 215 F.3d at 424.
Last, the court’s denial of Ellis’ motion for
substitution of counsel is reviewed for abuse of discretion.
United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir.
1994). In evaluating whether the trial court abused its
discretion in denying a defendant’s motion for substitution of
counsel, this court must consider: (1) the timeliness of the
motion; (2) the adequacy of the inquiry; and (3) whether the
attorney/client conflict was so great that it resulted in total
lack of communication preventing an adequate defense. United
States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004). These
factors are weighed against the district court’s “interest in
the orderly administration of justice.” Id. at 157.
Ellis’ motion was filed on the day his attorney met
with him to review the presentence report, five days before the
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scheduled date for sentencing and seven months after his guilty
plea. Thus, the motion was not timely. See Reevey, 364 F.3d at
157 (request for continuance to obtain new counsel on first day
of trial is untimely unless exigent circumstances present).
The district court’s inquiry into the basis for Ellis’
motion was not as thorough as it should have been because the
court did not ask defense counsel whether she believed that
communications with her client had broken down irretrievably or
whether she thought she could continue to represent him
adequately. However, defense counsel’s sentencing memoranda
indicate that she had been consulting with Ellis. Ellis claims
in conclusory fashion that his attorney failed to represent him
adequately during his guilty plea and sentencing, or to advise
him fully about his legal rights. He also claims that he
differed with more than his lawyer’s strategic choices, but he
does not explain what his differences were.
Ellis’ attorney challenged his career offender
designation and other sentencing enhancements assiduously, if
unsuccessfully, and argued for a lower guideline range than was
recommended in the presentence report. Although the government
asked for a sentence at the high end of the range, the district
court imposed a sentence at the low end, as defense counsel
requested. We conclude that Ellis has not demonstrated that his
attorney was unable to represent him adequately at sentencing
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and that the district court did not abuse its discretion in
denying his motion for new counsel.
We therefore affirm Ellis’ conviction and the district
court’s denial of his motions to withdraw his guilty plea and
for new counsel. We 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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