United States v. Thomas

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4645

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TRACY MAURICE THOMAS,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:08-cr-00020-BR-1)

Submitted: August 5, 2010 Decided: August 25, 2010

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mary J. Darrow, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Tracy Maurice Thomas pled guilty, pursuant to a

written plea agreement, to possession with the intent to

distribute cocaine base, in violation of 21 U.S.C.A. § 841(a)(1)

(West Supp. 2010), possession with the intent to distribute in

excess of five grams of cocaine base, in violation of 21

U.S.C.A. § 841(a)(1), and two counts of using and possessing a

firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A) (2006). The district

court sentenced Thomas to two concurrent terms of 77 months’

imprisonment on each of the cocaine base possession counts and

consecutive terms of 60 and 300 months’ imprisonment on the

firearm counts, for a total of 437 months’ imprisonment. Thomas

challenges his conviction on appeal, contending that the

district court erred in denying his motions to withdraw his

guilty plea and for the withdrawal of counsel. We affirm.

We review the district court’s denial of a motion to

withdraw a guilty plea for abuse of discretion. United

States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). Withdrawal

of a guilty plea is not a matter of right. United States v.

Bowman, 348 F.3d 408, 413 (4th Cir. 2003). Rather, 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 that essentially

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challenges the fairness of the Rule 11 proceeding.” United

States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995) (internal

quotation marks and ellipsis omitted). “The most important

consideration in resolving a motion to withdraw a guilty plea is

an evaluation of the Rule 11 colloquy at which the guilty plea

was accepted.” Bowman, 348 F.3d at 414. A properly conducted

Rule 11 proceeding “raise[s] a strong presumption that the plea

is final and binding.” United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992) (en banc). In deciding whether a defendant

has met the burden of showing a fair and just reason for

withdrawal of a guilty plea, we consider:

(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).

Thomas contends that the district court abused its

discretion in denying his motion to withdraw his guilty plea

because he claimed he was unhappy with his counsel’s

representation and pled guilty after being threatened by counsel

with a life sentence, even though he was not guilty of several

of the charges to which he pled guilty. Thomas argues that

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these facts, along with his mental health “issues,” resulted in

a guilty plea that was not knowingly and voluntarily made.

Thomas, however, has not specified how any mental

health conditions he suffered in any way prevented him from

entering a guilty plea that was knowing and voluntary. We have

reviewed the transcript of the guilty plea hearing, and, in

light of the district court’s full compliance with Rule 11 in

accepting Thomas’s guilty plea, Thomas has not “offered credible

evidence that his plea was not knowing or otherwise

involuntary.” Id. Further, at the Rule 11 hearing, Thomas

confirmed that he understood he faced a maximum of life

imprisonment on each of the firearms counts, had not been

threatened or coerced into pleading guilty, and was satisfied

with counsel’s services. Thomas’s statements at the Rule 11

hearing indicate that he entered the guilty plea knowingly and

voluntarily. See Fields v. Att’y 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.”).

Thomas does not credibly assert his legal innocence.

He points out he advised the district court that he did not

possess a firearm in furtherance of his drug trafficking crimes.

However, the presentence report reflects that Thomas possessed a

handgun during and in relation to the drug trafficking offense

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of possession with the intent to distribute cocaine base.

Moreover, Thomas admitted possessing the firearm at the Rule 11

hearing, and he does not offer any evidence to suggest why his

statements at the hearing should not be accepted as true.

Thomas’s motion to withdraw his plea was not timely

because it was filed over seven months after the Rule 11

proceeding. See United States v. Moore, 931 F.2d 245, 248

(4th Cir. 1991) (holding that six-week delay militated against

withdrawal of guilty plea). Thomas’s assertion that he lacked

the close assistance of counsel is the only Ubakanma factor that

might weigh in his favor. It is certainly clear from the record

that Thomas had differences with counsel. However, Thomas

neither suggests, nor does the record reveal, that counsel was

not competent. Finally, allowing Thomas to withdraw his guilty

plea likely would have prejudiced the Government and

inconvenienced the district court due to the passage of time.

We are satisfied that the district court did not abuse its

discretion in denying Thomas’s motion to withdraw his guilty

plea.

We also find no fault with the district court’s

rejection of counsel’s motion to withdraw. In reviewing the

denial of a motion for withdrawal of counsel, we consider: (1)

the timeliness of the motion; (2) the adequacy of the district

court’s inquiry into the defendant’s complaint concerning

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counsel; and (3) whether the conflict between attorney and

client was so great that it resulted in a “total lack of

communication preventing an adequate defense.” United States v.

Mullen, 32 F.3d 891, 895 (4th Cir. 1994) (internal quotation

marks omitted). Whether a request for substitution of counsel

should be granted is within the district court’s discretion.

See id.; United States v. Corporan-Cuevas, 35 F.3d 953, 956

(4th Cir. 1994). Thomas’s counsel filed three motions to

withdraw as counsel of record, and, on appeal, Thomas confines

his challenge to the district court’s denial of the third.

The third motion was filed over seven months after

Thomas pled guilty. As Thomas explained to the district court,

the bases for the motion were his claims of innocence to several

of the charges to which he had pled guilty, his dissatisfaction

with counsel’s assistance, and the Government’s failure to move

for a sentence reduction for substantial assistance.

We initially conclude that counsel’s third motion to

withdraw was not timely. See United States v. Reevey, 364 F.3d

151, 157 (4th Cir. 2004) (stating that a request for continuance

to obtain new counsel on the first day of trial is untimely,

absent exigent circumstances). Even on it merits, however, the

district court properly found it unpersuasive. Thomas’s claims

that counsel failed to represent him adequately and was

ineffective were wholly conclusory. Thomas also claims that

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counsel should have done more on his behalf, but he does not

explain what more counsel should have done. Moreover, the

record discloses counsel urged the district court to consider

Thomas’s cooperation with the Government and to impose the

minimum sentence possible. Although the Government emphasized

the strength of the evidence against Thomas and the long and

violent nature of his criminal history, the court imposed the

statutory minimum sentences on the firearms counts and sentences

at the low end of the U.S. Sentencing Guidelines Manual on the

cocaine base counts. Thus, Thomas has not demonstrated that his

attorney was unable to represent him adequately at sentencing.

We accordingly conclude that the district court did not abuse

its discretion in denying the third motion for withdrawal of

counsel.

We therefore affirm the district court’s judgment. We

deny Thomas’s motion seeking leave to file a pro se supplemental

brief. 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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