UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LONNIE BIVENS, a/k/a Miz,
Defendant - Appellant.
No. 10-4295
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD GLOVER, a/k/a Chicago,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:08-cr-00382-JFM-1; 1:08-cr-00382-JFM-2)
Submitted: February 25, 2011 Decided: March 17, 2011
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Howard Margulies, Columbia, Maryland; James Wyda, Federal Public
Defender, Joanna Silver, Staff Attorney, Baltimore, Maryland,
for Appellants. Rod J. Rosenstein, United States Attorney,
Kwame J. Manley, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Lonnie Bivens and Reginald Glover pled guilty to
conspiracy to distribute and possess with intent to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). Bivens was sentenced as a career
offender to 262 months’ imprisonment. Glover was sentenced to
240 months’ imprisonment pursuant to a Fed. R. Crim. P.
11(c)(1)(C) plea agreement. In these consolidated appeals,
Bivens claims that his sentence was unconstitutional and
procedurally unreasonable, and Glover claims that the district
court abused its discretion by denying his motion to withdraw
his guilty plea.
Bivens does not challenge the district court’s finding
that he qualified for sentencing as a career offender under U.S.
Sentencing Guideline Manual § 4B1.1 (2009). Nor does he
challenge the court’s calculation of the career offender
Guidelines range. Instead, he claims that the district court
relied on his bare record of arrests to determine his sentence
in violation of his due process rights. Bivens also contends
that such reliance rendered his sentence procedurally
unreasonable. We disagree.
We review a sentence for reasonableness, using an
abuse of discretion standard of review. Gall v. United States,
552 U.S. 38, 50 (2007). The first step in this review requires
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us to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines 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, 552 U.S. at 51. The Court then considers the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Id. In cases where, as
here, a defendant advances a constitutional challenge to his
sentence, we review the claim de novo. United States v.
Copeland, 321 F.3d 582, 601 (6th Cir. 2003).
We have reviewed the record and conclude that the
district court properly found that Bivens was subject to a
career offender sentence based on his two prior qualifying
convictions, and not on his arrest record. We also conclude
that the district court properly calculated Bivens’s Guidelines
range at 262 to 327 months’ imprisonment, and by imposing a
sentence at the bottom of that range, did not enhance his
sentence based on records of arrest. Thus, we find that Bivens
has not established a due process violation. See United States
v. Berry, 553 F.3d 273, 294 (3d Cir. 2009) (holding that
constitutional due process is offended whenever a sentence is
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increased based on inadequate evidence, such as a bare arrest
record).
Nor has Bivens established procedural error. The
district court considered the relevant 18 U.S.C. § 3553(a)
(2006) factors, made an individualized assessment based on the
facts presented, and adequately explained the reasons for the
chosen sentence sufficient to convince us that it considered the
parties’ arguments and had a reasoned basis for its decision.
Bivens’s contention that the district court improperly
considered his arrest records is unsupported by the record.
Accordingly, we conclude that Bivens’s sentence is not
procedurally unreasonable.
Glover claims that the district court abused its
discretion by not conducting a hearing to determine whether he
had advanced a fair and just reason for withdrawing his guilty
plea, and by not allowing him to withdraw his guilty plea. We
review a district court’s denial of a defendant’s motion to
withdraw his guilty plea for abuse of discretion. United States
v. Lambey, 974 F.2d 1389, 1393 (4th Cir. 1992) (en banc). A
defendant does not have an absolute right to withdraw a guilty
plea. United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). Nor is a defendant automatically entitled to an
evidentiary hearing whenever he seeks to withdraw a guilty plea.
Id. While a district court should liberally grant an
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evidentiary hearing when a defendant seeks to withdraw a guilty
plea, the hearing need only be granted when the defendant
advances a fair and just reason supporting the request to
withdraw. Id.
“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.” United States
v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003); United States v.
Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996). If the plea was
knowingly and voluntarily entered with the close assistance of
competent counsel during a properly conducted Rule 11 guilty
plea colloquy, the defendant is left with a very limited basis
upon which to have his plea withdrawn. Bowman, 348 F.3d at 414.
The district court may, however, consider several
other factors in determining whether the defendant had advanced
a fair and just reason.” Id. They include:
(1) whether the defendant has offered credible
evidence that his plea was not knowing and voluntary;
(2) whether the defendant has credibly asserted legal
innocence; (3) whether there has been a delay between
the entering of the guilty 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.
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We have reviewed the record and conclude that Glover’s
plea was knowing and voluntary, that the district court fully
complied with the Fed. R. Crim. P. 11 requirements when
accepting his plea. Glover has not demonstrated on this record
that he advanced a fair and just reason for withdrawing the plea
warranting a hearing or withdrawal of the plea. Thus, the
district court did not abuse its discretion.
Accordingly, we affirm Bivens’s sentence and affirm
Glover’s conviction. 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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