UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH LAUCHON JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. James A. Beaty,
Jr., Chief District Judge. (1:08-cr-00272-JAB-1)
Submitted: March 31, 2011 Decided: April 13, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
John W. Stone, Jr., Acting United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Lauchon Jackson pled guilty pursuant to a plea
agreement to conspiracy to interfere with commerce by robbery,
18 U.S.C. § 1951(a) (2006), and two counts of carry and use, by
brandishing and discharging, a firearm during a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii), (iii), (C)(i) (2006).
He received a total sentence of 650 months’ imprisonment. On
appeal, Jackson argues that (1) the district court erred in
accepting his guilty plea, in violation of his Due Process
rights, because he did not knowingly and voluntarily plead
guilty; and (2) the Assistant United States Attorney made
improper statements at sentencing that resulted in prosecutorial
misconduct. We affirm.
Jackson first argues that his guilty plea was not
knowingly and voluntarily entered and, therefore, the district
court erred in accepting it, in violation of his Due Process
rights. Because Jackson did not move in the district court to
withdraw his guilty plea, the Fed. R. Crim. P. 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525-26 (4th Cir. 2002). To establish plain error, Jackson
“must show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights.” United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009) (reviewing
unpreserved Rule 11 error). “The decision to correct the error
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lies within our discretion, and we exercise that discretion only
if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 343 (internal
quotation marks omitted). The defendant bears the burden of
showing plain error. Id.
Absent compelling evidence to the contrary, the “truth
of sworn statements made during a Rule 11 colloquy is
conclusively established.” United States v. Lemaster, 403 F.3d
216, 221-22 (4th Cir. 2005); see also Blackledge v. Allison, 431
U.S. 63, 74 (1977) (holding that a defendant’s declaration at
the Rule 11 hearing “carr[ies] a strong presumption of verity”);
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991)
(concluding that a defendant’s statements at a Rule 11 hearing
that he was neither coerced nor threatened were “strong evidence
of the voluntariness of his plea”). We have reviewed the
transcript of the Rule 11 hearing in light of Jackson’s
arguments on appeal and we conclude that his plea was knowing
and voluntary and that the court did not plainly err in
accepting the plea.
Jackson next argues the Assistant U.S. Attorney made
improper and prejudicial remarks at sentencing that amounted to
prosecutorial misconduct. Specifically, Jackson complains the
prosecutor improperly referenced a murder charge and other
robbery charges pending against Jackson. The prosecutor,
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Jackson argues, in fact highlighted for the court the presence
in the courtroom of the mother of the store clerk who was shot
and killed during one of the robberies, noting that Jackson
engaged in ten additional robberies thereafter.
To succeed on a claim of prosecutorial misconduct,
Jackson must prove that the prosecution’s conduct was in fact
improper, and that he was deprived of a fair trial because of
the prejudicial conduct. United States v. Allen, 491 F.3d 178,
191 (4th Cir. 2007). Because Jackson did not raise this claim
in the district court, we again review for plain error. See
United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005).
Assuming without deciding the prosecutor’s statements were
error, we find that the statements did not prejudice Jackson.
We therefore find no plain error.
Accordingly, we affirm the district court’s judgment.
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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