UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMIEN COURTNEY FITZGERALD, a/k/a Crazy Man, a/k/a Big,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:12-cr-00032-JLK-2)
Submitted: March 11, 2014 Decided: March 28, 2014
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wayne D. Inge, LAW OFFICE OF WAYNE D. INGE, Roanoke, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, Drew
J.M. Bradylyons, Special Assistant United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damien Fitzgerald pled guilty to two counts of
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2012), and one count of possession of a firearm
during and in relation to a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A) (2012). Prior to being sentenced,
Fitzgerald moved pro se to withdraw his guilty plea. Without
appointing new counsel, the district court denied the motion and
sentenced Fitzgerald to 180 months’ imprisonment. On appeal,
Fitzgerald contends that the district court erred in denying his
motion to withdraw his guilty plea and that he was effectively
abandoned at the hearing because of a conflict of interest with
his counsel. We affirm.
We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United States
v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). “A defendant
has no absolute right to withdraw a guilty plea[.]” Id. at 383-
84 (internal quotation marks omitted). Instead, the defendant
bears the burden of “show[ing] a fair and just reason” for
withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B);
Nicholson, 676 F.3d at 383.
This court has outlined six factors that the district
court should evaluate to determine whether a defendant is
entitled to withdraw his guilty plea:
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(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 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.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
While all the factors noted in Moore should be considered, the
key factor to determining whether a motion to withdraw should be
granted is whether the Rule 11 hearing was properly conducted.
Nicholson, 676 F.3d at 384.
Fitzgerald does not challenge on appeal the validity
of the Rule 11 proceeding. Rather, his sole contention is that
he could not have pled guilty without reviewing the Government’s
evidence against him. The district court noted that Fitzgerald
cannot read or write and that Fitzgerald waited ten weeks to
file his motion. Further, at his plea hearing, Fitzgerald
repeatedly affirmed his guilt under oath, stated that he was
satisfied with his counsel, stated that he had discussed his
case and the nature of the charges against him with counsel
numerous times, and affirmed that there was a factual basis to
support his guilt. See Blackledge v. Allison, 431 U.S. 63, 74
(1977) (holding that statements under oath are entitled to “a
strong presumption of verity”). In light of these admissions
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and the Moore factors, we conclude that the district court did
not abuse its discretion by concluding that Fitzgerald’s
contentions in his motion were incredible and that his plea was
knowing and voluntary.
Lastly, Fitzgerald argues that he was effectively
abandoned at the withdrawal hearing because, as a result of his
allegations of ineffective assistance of counsel, his counsel’s
representation was compromised by a conflict of interest. We
have held that:
Where . . . a defendant urges the ineffectiveness of
counsel as the basis of a challenge to the denial of a
. . . motion [to withdraw a guilty plea], the claim is
only advanced for its relevance to the determination
whether . . . [the motion should be granted], and not
as an independent constitutional basis for reversal.
United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). The
question, therefore, is “whether the underlying motion had
sufficient merit to create an actual conflict of interest or
present a plausible alternative defense strategy.” Hines v.
Miller, 318 F.3d 157, 163 (2d Cir. 2003) (internal quotation
marks omitted). Because Fitzgerald’s motion to withdraw was
wholly frivolous, we conclude that the district court did not
abuse its discretion by not appointing new counsel to represent
Fitzgerald at the withdrawal hearing.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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