UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4673
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVEN JERMONTE CURETON, a/k/a Rollo,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00061-FDW-14)
Submitted: July 14, 2010 Decided: July 23, 2010
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph R. Conte, LAW OFFICES OF J.R. CONTE, P.L.L.C.,
Washington, D.C., for Appellant. Edward R. Ryan, United States
Attorney, Jennifer Lynn Dillon, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Jermonte Cureton was charged in five counts of
a multi-count indictment filed against multiple defendants. On
September 26, 2007, Cureton executed an agreement with the
Government, in which he pled guilty to Count I of the
indictment: conspiracy to possess with the intent to distribute
cocaine base, cocaine, marijuana and ecstasy, in violation of
21 U.S.C. §§ 841, 846 (2006).
On October 3, 2007, Cureton appeared before a United
States Magistrate Judge for a Rule 11 hearing. The magistrate
judge recited the elements of the offense and the mandatory
minimum and maximum penalties applicable, and Cureton stated
that he understood them. The Government recited the terms of
Cureton’s plea agreement, the court questioned Cureton, and
Cureton stated that he was guilty of conspiracy to distribute
drugs.
On December 28, 2007, over three months after he
executed his plea agreement, Cureton filed a pro se motion to
withdraw his guilty plea. Apparently concerned with the
possibility that he could receive a life sentence for his
crimes, Cureton argued at a hearing before the district court
that his plea agreement was not valid because it incorrectly
recited that he was a “member” of the “Hidden Valley Kings,” a
street gang that seems to have been the central target of the
2
Government’s investigation. Cureton did admit that he sold
drugs with gang members, though he maintained that he did not
know their gang affiliation at the time, despite the fact that
they “grew up together.” Cureton stated he would “plead to
anything but being a part of a gang.”
The district court repeatedly informed Cureton that he
had not pled guilty to being a member of a gang, but rather to
conspiracy to distribute drugs, and concluded that the issue of
whether or not Cureton was a member of a gang did not directly
have any bearing on an element of the charge of conspiracy to
distribute drugs that Cureton had plead guilty to. Accordingly,
the court determined that it could not grant Cureton’s motion,
especially since Cureton had stated several times throughout the
hearing that he had conspired to sell drugs. Following the
denial of his motion, Cureton was sentenced to 24 months’
imprisonment, among other punishments. Cureton appealed.
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 may not withdrawal a guilty plea as a matter of right.
Id. (citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991)). The defendant bears the burden of showing a “fair and
just reason” for the withdrawal of his guilty plea. Fed. R.
Crim. P. 11(d)(2)(B). “[A] ‘fair and just’ reason . . . is one
3
that essentially challenges . . . the fairness of the Rule 11
proceeding.” United States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992) (en banc).
As an initial matter, it should be noted that Cureton
does not allege that the district court committed any specific
error in conducting its Rule 11 colloquy, and an independent
review of the record establishes that the lower court
substantially complied with all of its obligations.
Accordingly, Cureton must overcome a strong presumption that his
guilty plea is final and binding. Lambey, 974 F.2d at 1394.
In determining whether Cureton has carried his burden,
and overcome this presumption, this court must consider six
factors:
(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.
Ubakanma, 215 F.3d at 424 (citing Moore, 931 F.2d at 248
(footnote omitted)).
This court has previously stated that the first,
second and fourth factors are the most significant, as they
“speak most straightforwardly to the question of whether the
4
movant has a fair and just reason to upset the settled
systematic expectations” by withdrawing his guilty plea. United
States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995). We find
that Cureton has failed to carry his burden with regard to at
least these three factors.
First, Cureton has failed to offer any credible
evidence to overcome the presumption that his plea was knowing
and voluntary. In a signed document entered contemporaneously
with his plea colloquy, which tracks closely with the questions
Cureton was asked in open court, Cureton stated that he had not
been threatened or intimidated into pleading guilty, he was not
under the influence of drugs or alcohol or otherwise incapable
of understanding the charges against him, he understood the
charges against him, and was pleading guilty because he was in
fact guilty. Cureton has not attempted to directly refute any
of these statements.
In both his plea agreement and at his Rule 11
colloquy, the material terms of his plea agreement were
explained to Cureton, and in both instances, he acknowledged
that he understood them. To escape the consequences of these
actions, Cureton is now attempting to cloud the issue by
attacking a non-essential passage in his plea agreement, which
is of marginal relevance, to undermine the overall voluntariness
of his assent to the material terms of his agreement.
5
Cureton’s statements at his motion hearing
conclusively establish that he is not legally innocent of the
conspiracy charge to which he pled. As the district court
stated, Cureton’s many in-court admissions that he conspired to
sell drugs made it virtually impossible for the lower court to
allow him to withdraw his guilty plea.
Cureton has also attempted to show that his plea was
involuntary or otherwise invalid by generally averring that his
attorney was inaccessible and/or did not cooperate with him;
however, his self-serving statements on this point cannot carry
the day. A defendant seeking to establish that he is entitled
to withdraw his plea because he did not receive close assistance
of counsel must demonstrate that counsel performed deficiently
and that, but for counsel’s errors, the defendant would not have
pled guilty and would have insisted on proceeding to trial.
United States v. Bowman, 348 F.3d 408, 416 (4th Cir. 2003).
Cureton stated at his motion hearing that he would “plead to
anything but being a part of a gang,” which, ironically, is
precisely what he did. This statement obviously falls far short
of establishing that but for counsel’s errors, assuming some
occurred, Cureton would have insisted on going to trial.
Finally, while the fifth and sixth factors neither
counsel strongly for or against allowing Cureton to withdraw his
plea, the fact that Cureton waited over three months to file his
6
motion must be taken into account in determining that the
district court did not abuse its discretion. While delay is not
necessarily dispositive in all instances, it should be noted
that this court has considered a much shorter delay to undermine
a defendant’s prospects of withdrawing an accepted guilty plea.
Cf. Moore, 931 F.2d at 248 (six-week delay weighed heavily
against defendant).
In any event, because Cureton has failed to establish
that the Moore factors counsel in favor of allowing him to
withdraw his guilty plea, we hold that the district court did
not abuse its discretion. Accordingly, we affirm the district
court’s judgment. We dispense with oral argument because the
issues are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
7