UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4289
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACY MARK ANTHONY TUCKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cr-00298-HEH-1)
Submitted: March 28, 2011 Decided: April 22, 2011
Before SHEDD, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Patrick L. Bryant,
Research and Writing Attorney, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Michael R.
Gill, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tracy Tucker was charged with possession of a firearm
and ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). After the district court denied Tucker’s
motion to suppress evidence, Tucker pled guilty. Approximately
two and one-half months later, he moved to withdraw his plea.
Following a hearing, the district court denied the motion.
After another hearing, the court denied Tucker’s motion to
reconsider the denial of the motion to withdraw. Tucker was
sentenced to sixty months in prison. He now appeals, raising
two issues. We affirm.
I
Tucker first contends that the district court erred
when it denied his motion to withdraw his guilty plea. We
review the denial of the motion for abuse of discretion. United
States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). Withdrawal
of a guilty plea is not a matter of right. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). The defendant bears
the burden of showing a “fair and just reason” for withdrawing
his plea. Fed. R. Crim. P. 11(d)(2)(B). To determine whether
the defendant has met his burden, courts look to six factors:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
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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.
Ubakanma, 215 F.3d at 424.
After carefully reviewing the record, we agree with
the district court that Tucker did not meet his burden. First,
because there was substantial compliance with Fed. R. Civ. P.
11, * there is a strong presumption that Tucker’s plea is valid.
See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992)
(“[A]n appropriately conducted Rule 11 proceeding . . . raise[s]
a strong presumption that the plea is final and binding.”).
Additionally, the six factors identified in Ubakanma
weigh heavily against Tucker. He repeatedly assured the court
at the Rule 11 proceeding that he was fully satisfied with his
counsel’s representation, he wished to plead guilty because he
was guilty, no one had forced or threatened him to plead guilty,
and he was pleading guilty of his own free will and not because
of any outside pressure. His unsupported claim that his
*
The court did not inform Tucker, in accordance with Rule
11(b)(1)(A), that the Government had the right to prosecute
Tucker for any perjury committed at the hearing. This was the
only flaw in the proceedings, which otherwise complied with Rule
11.
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attorney or the court pressured him to plead guilty and that he
did not understand the Rule 11 hearing is at odds with his
solemn declarations, under oath, to the contrary at that
hearing. See Blackledge v. Allison, 434 U.S. 63, 64 (1977)
(statements at plea colloquy “carry a strong presumption of
verity”).
Further, Tucker has never credibly asserted his legal
innocence. Indeed, it would be almost impossible for him to do
so, given his incriminating statements at the time the search
warrant was executed, his admission of guilt at the Rule 11
hearing, and his statements to his probation officer during
preparation of the presentence investigation report. The more-
than-two-month delay in moving to withdraw the plea also weighs
against Tucker.
Despite his claims to the contrary, the record,
including Tucker’s sworn statements at the Rule 11 hearing,
shows that he worked closely with his attorney. Additionally,
as the district court stated, the court’s resources would be
stretched if the matter went to trial.
Five of the six factors thus weigh against permitting
withdrawal of the plea. The sixth factor — prejudice to the
Government — weighs in Tucker’s favor: the Government candidly
admitted that it would not be unduly prejudiced if the case were
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tried. We conclude that the district court did not abuse its
discretion in denying the motion to withdraw the guilty plea.
II
We next consider Tucker’s argument that his sixty-
month sentence is unreasonable because it is greater than
necessary to accomplish the purposes of sentencing. According
to Tucker’s presentence investigation report (PSR), his offense
level was 20. See U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(4)(A) (2009). Two levels were subtracted for
acceptance of responsibility. See USSG § 3E1.1. His total
offense level was 18, his criminal history category was III, and
his advisory Guidelines range was 33-41 months.
At sentencing, Tucker had no objections to the report.
The United States argued that, in light of Tucker’s attempts to
withdraw his guilty plea, the adjustment for acceptance of
responsibility was improper. The court agreed that Tucker was
ineligible for the two-level reduction. Therefore, Tucker’s
offense level was 20, and his advisory Guidelines range rose to
41-51 months.
The court determined after argument that an upward
departure was warranted because Tucker’s criminal history score
significantly under-represented his criminal background. The
court observed that Tucker had received no criminal history
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points for offenses, including use of a firearm and attempted
murder, committed when he was a juvenile. Nor did Tucker’s
criminal history score reflect that his parole from a 1990
murder conviction was revoked in 1994. The court was
particularly concerned by Tucker’s pattern of committing
offenses involving firearms. The court determined that a one-
level upward departure to criminal history category IV was
appropriate. Accordingly, Tucker’s advisory Guidelines range
became 51-61 months. The court stated that a sentence within
this range would be adequate but not longer than necessary to
satisfy the purposes of sentencing.
Following argument, the court imposed a sixty-month
sentence. The court stated that it had considered the Guidelines
and the 18 U.S.C. § 3553(a) (2006) factors. The court referred
to Tucker’s past involvement in violent behavior and stated that
the sentence selected would promote respect for the law, protect
the community, and deter future criminal behavior.
“[A]ny sentence, within or outside of the Guidelines
range, as a result of a departure or a variance, must be
reviewed by appellate courts for reasonableness pursuant to an
abuse of discretion standard.” United States v. Diosdado-Star,
630 F.3d 359, 365 (4th Cir. 2011); see also Gall v. United
States, 552 U.S. 38, 46 (2007); Rita v. United States, 551 U.S.
338, 354-55 (2007). In conducting our review, we first examine
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the sentence for “significant procedural error,” including
“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—including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51. With respect to the
explanation of the sentence, we have stated, “Regardless of
whether the district court imposes an above, below, or within-
Guidelines sentence, it must place on the record an
individualized assessment based on the particular facts of the
case.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009) (internal quotation marks omitted).
If we conclude that a sentence is procedurally
reasonable, we then consider the substantive reasonableness of
the sentence. United States v. Lynn, 592 F.3d 572, 575 (4th
Cir. 2010). At this stage, we “take into account the totality
of the circumstances, including the extent of any variance from
the Guidelines range.” Gall, 552 U.S. at 51. “[T]he method by
which the district court deviates from the Guidelines range does
not alter (1) the review in which the courts of appeals must
engage, or (2) the justification the district court must
provide.” Diosdado-Star, 630 F.3d at 365.
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We hold that Tucker’s sixty-month sentence is
procedurally and substantively reasonable. The district court
accurately calculated Tucker’s advisory Guidelines range, and
the court considered both the § 3553(a) sentencing factors and
the parties’ positions on sentencing. Further, the court
adequately explained its reasons for the departure sentence.
III
We accordingly affirm. 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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