UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4278
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARL EDWARD DODSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:08-cr-00053-IMK-JSK-2)
Submitted: February 24, 2011 Decided: March 18, 2011
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Elgine H. McArdle, MCARDLE LAW OFFICE, Wheeling, West Virginia,
for Appellant. Betsy C. Jividen, United States Attorney, Shawn
Angus Morgan, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Carl Edward Dodson pled
guilty to possession or distribution of pseudoephedrine knowing
or having reasonable cause to believe that it would be used to
manufacture methamphetamine. The district court sentenced
Dodson to 78 months’ imprisonment, the bottom of the advisory
guidelines range. Dodson argues on appeal that the district
court erred by denying his motion to withdraw his guilty plea.
Finding no abuse of discretion, we affirm.
At the beginning of his sentencing hearing, Dodson
moved to withdraw his guilty plea, asserting that he is innocent
of the offense and that his attorney did not provide effective
representation but instead urged him to enter the guilty plea.
Following an extensive hearing, the district court denied the
motion. 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.
“[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
2
Cir. 1992) (en banc). In this case, the district court fully
complied with the requirements of Rule 11 in accepting Dodson’s
guilty plea. Accordingly, Dodson must overcome a strong
presumption that his guilty plea is final and binding. Id.
In determining whether Dodson has carried his burden,
we consider whether: (1) he presented credible evidence that his
guilty plea was not knowing and voluntary, (2) he credibly
asserted his legal innocence, (3) there has been a undue delay
between the guilty plea and the motion to withdraw the plea, (4)
counsel provided close and competent assistance, (5) the
government will be prejudiced and the court inconvenienced by
the withdrawal of the plea. Moore, 931 F.2d at 248. This court
has stated that the voluntariness of the plea, evidence of
actual innocence, and the adequacy of counsel’s representation
are the most significant factors, as they “speak most
straightforwardly to the question 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).
Dodson claimed that his guilty plea was not knowing
and voluntary because he pled guilty based on his attorney’s
recommendations and the attorney’s inadequate analysis of the
case. He asserted that he was convinced to plead guilty even
though he had always wanted to proceed to trial because he was
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innocent. During the plea hearing, Dodson testified under oath
that he understood the elements of the offense to which he was
pleading guilty, that the Government’s summary of the facts
establishing his guilt were accurate, and that he, in fact,
committed the offense. Dodson stated that he was entering the
plea voluntarily, and that he had received the close assistance
of his attorney in preparing the case and in deciding to plead
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 agree with
the district court’s conclusion that Dodson failed to make a
credible showing that his guilty plea was not knowing and
voluntary or that he is actually innocent.
Dodson presented evidence that his attorney had not
yet interviewed Dodson’s suggested witnesses and had not
conducted a thorough analysis of the case. However, based on
Dodson’s representations at the plea hearing and the breadth of
his knowledge of his case and the application of the sentencing
guidelines, the district court did not clearly err in finding
that he had the close assistance of competent counsel. See
United States v. Suter, 755 F.2d 523, 525 (7th Cir. 1985). The
court added that counsel’s “forceful recommendation” that Dodson
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plead guilty was a reasonable exercise of counsel’s judgment
following the entry of a guilty plea by and the debriefing of
Dodson’s co-defendant.
Thus, the three most important Moore factors weigh
against Dodson’s motion to withdraw his guilty plea. See
Sparks, 67 F.3d at 1154 (noting that the remaining Moore factors
“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.”).
Additionally, based on the district court’s observations of
Dodson’s demeanor and lack of hesitation during the plea
hearing, and his demeanor during the hearing to withdraw the
plea, the court reaffirmed its conclusion that Dodson’s decision
to plead guilty was knowingly and voluntarily made. Our review
of the record discloses no abuse of discretion by the district
court in denying Dodson’s motion to withdraw his plea.
Accordingly, we affirm the district court’s order
denying Dodson’s motion to withdraw his guilty plea. 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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