UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4666
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD HENRY NICKELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:08-cr-00026-nkm-1)
Submitted: May 17, 2010 Decided: June 8, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Morchower, Richmond, Virginia, for Appellant. Timothy
J. Heaphy, United States Attorney, Nancy S. Healey, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Henry Nickell pled guilty, without a plea
agreement, to possession of a firearm by a user of controlled
substances, in violation of 18 U.S.C. § 922(g)(3) (2006), and
possession of marijuana, in violation of 21 U.S.C. § 844 (2006).
The district court sentenced Nickell to two months of
imprisonment on each count, to run concurrently, three years of
supervised release, a $1000 fine, and a $125 special assessment.
Nickell timely appealed. On appeal, Nickell argues that the
district court erred in denying his motion to withdraw his
guilty plea. He asserts that he demonstrated that his plea was
not knowing and voluntary and that he did not have the close
assistance of counsel. We affirm.
A district court’s denial of a motion to withdraw a
guilty plea is reviewed for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). The
defendant has the burden of demonstrating “a fair and just
reason” for withdrawal. Fed. R. Crim. P. 11(d)(2)(B); Ubakanma,
215 F.3d at 424. A “fair and just reason” is one that
challenges the fairness of the guilty plea colloquy conducted
pursuant to Rule 11 of the Federal Rules of Criminal Procedure.
United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).
In determining whether the trial court abused its
discretion in denying a motion to withdraw a guilty plea, six
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factors are considered. United States v. Moore, 931 F.2d 245,
248 (4th Cir. 1991). The district court specifically considered
and discussed the Moore factors in its order denying Nickell’s
motion to withdraw his plea. Our review of the record leads us
to conclude that the court did not abuse its discretion in
concluding that Nickell failed to establish a fair and just
reason to allow withdrawal of his plea.
Accordingly, we affirm Nickell’s convictions 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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