UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4975
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY CHEESE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00415-WDQ-4)
Submitted: December 30, 2010 Decided: February 17, 2011
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for
Appellant. Christopher M. Mason, Special Assistant United
States Attorney, James Thomas Wallner, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Larry Cheese pled guilty
to conspiracy to distribute and possess with intent to
distribute one kilogram or more of heroin, in violation of 21
U.S.C. § 846 (2006). The district court sentenced Cheese to 292
months’ imprisonment, the bottom of the advisory guidelines
range. Cheese timely appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal but questioning whether the district court erred by
denying Cheese’s motion to withdraw his guilty plea and
challenging the reasonableness of Cheese’s sentence. Cheese was
advised of his right to submit a pro se supplemental brief, but
he did not file one.
At the beginning of his sentencing hearing, Cheese
made a pro se motion to withdraw his guilty plea, which the
district court denied. We review the 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 plea, even before sentencing.” United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). Instead, he must show that a
“fair and just reason” supports his request to withdraw his
plea. Id.
2
“[A] ‘fair and just’ reason . . . is one that
essentially challenges . . . the fairness of the [Fed. R. Crim.
P.] 11 proceeding.” United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc). In this case, the district
court substantially complied with the requirements of Rule 11 in
accepting Cheese’s guilty plea. Accordingly, Cheese must
overcome a strong presumption that his guilty plea is final and
binding. Id.
In determining whether Cheese has carried his burden,
we consider six factors:
(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 the 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.
Moore, 931 F.2d at 248. This court has stated that the first,
second, and fourth factors are the most significant, as they
“speak most straightforwardly to the question of whether the
movant has a fair and just reason to upset settled systemic
expectations” by withdrawing his guilty plea. United States v.
Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995).
Cheese claimed at the sentencing hearing that his
guilty plea was not knowing and voluntary because his lawyer
3
promised him on the day of the trial that he would receive a
twenty-one-year sentence if he pled guilty and that he was
scared into pleading guilty when he had always wanted to proceed
to trial because he was innocent. However, during the plea
hearing, Cheese declared under oath that he understood that his
offense included a statutory minimum sentence of ten years and a
statutory maximum term of life in prison. Cheese also denied
that anyone had threatened or forced him into pleading guilty.
Finally, when the court asked him if, other than in the plea
agreement (which did not include a prediction or promise of a
particular sentence), anyone had made any promise or prediction
about what sentence he would receive, Cheese answered, “No.”
Contrary to his bald claim of innocence at the
sentencing hearing, Cheese declared under oath at the plea
hearing that the Government’s summary of the facts establishing
his guilt was accurate and that he was pleading guilty because
he was, in fact, guilty. These statements, made under oath, are
presumed to be true. Blackledge v. Allison, 431 U.S. 63, 74
(1977); see Beck v. Angelone, 261 F.3d 377, 395-96 (4th Cir.
2001) (absent “clear and convincing evidence to the contrary,”
defendant is bound by statements made under oath at Rule 11
hearing). We conclude that Cheese did not made a credible
showing that his guilty plea was not knowing and voluntary or
that he is actually innocent. Moreover, although Cheese sought
4
new counsel at his sentencing hearing, his claims regarding the
adequacy of counsel’s representation were unsubstantiated.
Thus, the three most important Moore factors weigh
against Cheese’s motion to withdraw his guilty plea.
Additionally, Cheese waited until the sentencing hearing to try
to withdraw his guilty plea. Even if withdrawal of the plea
would not prejudice the Government or inconvenience the district
court or waste judicial resources, these countervailing
considerations do not constitute a “fair and just” reasons to
grant Cheese’s motion to withdraw his guilty plea. See Sparks,
67 F.3d at 1154 (noting that Moore factors three, five, and six
“are better understood as countervailing considerations that
establish how heavily the [Rule 11] presumption [of finality of
the guilty plea] should weigh in any given case.”). We conclude
that the district court did not abuse its discretion in denying
Cheese’s motion.
Turning to Cheese’s sentence, we review it under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting this review, we
“must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the [g]uidelines range, treating the
[g]uidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
5
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. “When rendering a sentence, the
district court must make an individualized assessment based on
the facts presented,” applying the “relevant § 3553(a) factors
to the specific circumstances of the case before it.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks and emphasis omitted). The court must also
“state in open court the particular reasons supporting its
chosen sentence” and “set forth enough to satisfy” this court
that it has “considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking
authority.” Id. (internal quotation marks omitted).
Once we have determined that the sentence is free of
procedural error, we must consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. If the
sentence is within the appropriate guidelines range, this court
applies a presumption on appeal that the sentence is reasonable.
See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).
In this case, the district court correctly calculated
the advisory guidelines range. Although the court committed
procedural error in failing to provide an individualized
assessment of Cheese’s case, we conclude that the court’s
omission did not affect Cheese’s substantial rights. See United
6
States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). Furthermore,
neither counsel nor Cheese has articulated any factors to
overcome the appellate presumption of reasonableness afforded
Cheese’s within-guidelines sentence. Accordingly, we conclude
that the district court did not abuse its discretion in
sentencing Cheese.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Cheese, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Cheese requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Cheese.
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
7