UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4649
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RONALD DEMETRIOUS THOMAS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:06-cr-00405-RWT-1)
Submitted: October 20, 2009 Decided: December 4, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edward C. Sussman, LAW OFFICE OF EDWARD SUSSMAN, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Barbara S. Skalla, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Demetrious Thomas pled guilty to distributing
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006). He was sentenced to 400 months’
imprisonment. On appeal, he argues the district court abused
its discretion in denying his motion to withdraw his guilty plea
and that his sentence is unreasonable. We affirm.
On appeal, Thomas first argues that he presented a
“fair and just reason” to withdraw his plea and therefore the
court erred in denying his motion. Thomas maintains counsel was
ineffective in failing to ascertain the potential sentencing
consequences, and in giving Thomas and his sister an “unduly
optimistic” prediction regarding the sentence in an effort to
induce a plea. He argues counsel failed to investigate and
confirm his criminal history prior to the Fed. R. Crim. P. 11
hearing and, in this respect, properly advise him regarding the
applicability of the career offender guideline. He further
asserts the district court erred in discussing specific
guidelines ranges at the Rule 11 hearing, in violation of United
States v. Good, 25 F.3d 218 (4th Cir. 1994).
This court reviews a district court’s 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). A
defendant does not have an absolute right to withdraw a guilty
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plea. United States v. Bowman, 348 F.3d 408, 413 (4th Cir.
2003). Once the district court has accepted a defendant’s
guilty plea, 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); United States v. Battle, 499 F.3d 315, 319 (4th
Cir. 2007). “[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).
In deciding whether to permit a defendant to withdraw his
guilty plea, a district court should consider:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
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). The
first, second, and fourth of the Moore factors carry the most
weight in these considerations, as they concern whether the
defendant has a good reason to “upset settled systemic
expectations.” United States v. Sparks, 67 F.3d 1145, 1154 (4th
Cir. 1995). However, an appropriately conducted Rule 11
proceeding “raise[s] a strong presumption that the plea is final
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and binding,” Lambey, 974 F.2d at 1394, as statements made
during a plea hearing “carry a strong presumption of verity,”
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Thus, “a
properly conducted Rule 11 guilty plea colloquy leaves a
defendant with a very limited basis upon which to have his plea
withdrawn.” Bowman, 348 F.3d at 414.
The record discloses that the district court’s Rule 11
hearing was extensive, as was the subsequent hearing on the
motion to withdraw. Further, we afford Thomas’ guilty plea a
strong presumption of validity. We find no credible evidence of
ineffective assistance of counsel, undue pressure, or actual
innocence. After reviewing the Moore factors and the district
court’s articulated reasons for denying Thomas’ motion to
withdraw, we find no abuse of discretion in its denial. *
*
We reject Thomas’ assertion that the district court
“tainted” the Rule 11 hearing by providing examples of potential
guideline ranges lower than the range ultimately applied to him.
While we cautioned district courts in United States v. Good, 25
F.3d 218, 223 (4th Cir. 1994), not to give any estimates of
guideline ranges in advance of the presentence report as it may
turn out to be misleading, as in Good, in this case the court’s
discussion of guideline ranges was not error. The district
court clearly warned Thomas that the guideline ranges were only
examples of sentences he could receive, based on multiple
variables that had yet to be decided, including his offense
level and criminal history category. Moreover, any potential
confusion was mitigated by the court’s repeated reminders to
Thomas that his guideline range would ultimately depend on
whether he was found to be a career offender.
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Thomas also argues his sentence was unreasonable.
Specifically, he maintains that the court failed to articulate
why the chosen sentence was appropriate, claiming the court’s
reasoning was “inadequate and constitutionally defective.”
This court reviews a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, , 128 S. Ct. 586, 597 (2007); see also United States v.
Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so doing, the
court first examines the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the [g]uidelines range, treating the [g]uidelines
as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence . . . .”
Gall, 128 S. Ct. at 597. Finally, the court “then consider[s]
the substantive reasonableness of the sentence imposed.” Id.
This court presumes on appeal that a sentence within a properly
calculated advisory guidelines range is substantially
reasonable. Rita v. United States, 551 U.S. 338, 346-56 (2007)
(upholding presumption of reasonableness for within-guidelines
sentence).
Thomas’ claim regarding his sentence is wholly without
merit. The district court clearly articulated its consideration
of the § 3553(a) factors. Moreover, the district court’s
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sentence was based on its “individualized assessment” of the
facts of the case. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). The court described the offense conduct and
determined that the seriousness of the offense cannot be
understated. The court noted that Thomas “is a very busy drug
dealer who has continued to deal drugs, notwithstanding break
after break after break after break from the criminal justice
system.” The court concluded there “simply must be serious
punishment” for somebody with this massive record, who “has
taken every break he’s been given by every judge and, in effect,
thumbed his nose at the criminal justice system and keeps on
going without any deterrence whatsoever.” The court described
Thomas as “an unrepentant recidivist drug dealer,” who “needs to
be incarcerated . . . for a long period of time.” Based on
these considerations, the district court deemed appropriate a
sentence within the advisory guidelines of 360 months to life
and, accordingly, sentenced Thomas to 400 months’ imprisonment.
We find Thomas’ within-guidelines sentence is presumptively
reasonable on appeal, United States v. Go, 517 F.3d 216, 218
(4th Cir. 2008), and Thomas has not rebutted that presumption.
See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (stating presumption may be rebutted by showing sentence
is unreasonable when measured against the § 3553(a) factors).
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Thus, the district court did not abuse its discretion in
imposing the chosen sentence.
We accordingly affirm Thomas’ conviction and 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
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