UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4665
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMAR KEITH GARVIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:13-cr-00141-JAG-1)
Submitted: March 30, 2015 Decided: April 3, 2015
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mark Bodner, Fairfax, Virginia, for Appellant. Dana J. Boente,
United States Attorney, Olivia L. Norman, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamar Keith Garvin pleaded guilty, without a plea
agreement, to attempted Hobbs Act robbery, in violation of 18
U.S.C. § 1951 (2012) (Count One); use of a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c) (2012)
(Count Two); three counts of Hobbs Act robbery, in violation of
18 U.S.C. § 1951 (Counts Three, Five, and Six); brandishing a
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c) (Count Four), and conspiracy to obstruct, delay, and
affect commerce by robbery, in violation of 18 U.S.C. § 1951
(Count Seven).
On appeal, Garvin first challenges the district court’s
denial of his motion to withdraw his guilty pleas to Counts One
and Two, contending that he made a credible assertion of
innocence as to these charges and that he was not fully informed
of his rights prior to entering his guilty pleas. 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 seeking to withdraw his
guilty plea bears the burden of “show[ing] a fair and just
reason” for withdrawing the plea. Fed. R. Crim. P. 11(d)(2)(B);
Nicholson, 676 F.3d at 383.
In deciding whether to permit a defendant to withdraw his
guilty plea, a district court should consider:
2
(1) whether the defendant has offered credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
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.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.
2000). While all of these factors should be considered, the key
factor is whether the Fed. R. Crim. P. 11 hearing was properly
conducted. Nicholson, 676 F.3d at 384.
We have reviewed the record and discern no abuse of
discretion in the district court’s decision. Garvin has failed
to establish that his guilty pleas were not knowing and
voluntary. The district court conducted a thorough Rule 11
hearing, ensuring that Garvin understood the charges against
him, the rights he was waiving, and the statutory mandatory
minimum sentences applicable. Garvin has also failed to
credibly assert his innocence of these two charges as the
district court discredited his statements that he did not
participate in the robbery and that the robbery did not involve
a real firearm. Additionally, Garvin had the close assistance
of counsel and he waited a considerable amount of time after
pleading guilty to file the motion.
3
Next, Garvin argues that the district court erred when it
denied his two motions to substitute counsel. We review a
district court’s ruling on a motion to substitute counsel for
abuse of discretion. United States v. Horton, 693 F.3d 463, 466
(4th Cir. 2012). This Court considers three factors on appeal:
the “[t]imeliness of the motion; [the] adequacy of the court’s
inquiry into the defendant’s complaint; and whether the
attorney/client conflict was so great that it had resulted in
total lack of communication preventing an adequate defense.”
United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988).
After review, we discern no abuse of discretion. First,
these motions were untimely filed. Despite long-standing
dissatisfaction with counsel, Garvin waited until the morning of
trial to first request new counsel and he filed the second
motion only 18 days before sentencing. Next, the district court
conducted thorough inquiries into the conflict between Garvin
and counsel, addressing Garvin personally and asking counsel
about the issues Garvin raised. Counsel advised Garvin on the
Government’s evidence, including his codefendants’ likely
testimony; discussed whether Garvin should testify at trial; and
addressed defenses Garvin wished to present. We therefore
conclude that the district court did not abuse its discretion.
Finally, Garvin argues that the district court erred when
it denied his motion to suppress his statements. The Government
4
responds that Garvin waived his right to appeal this issue by
entering unconditional guilty pleas. “This court has recognized
that, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
Procedure, the direct review of an adverse ruling on a pretrial
motion is available only if the defendant expressly preserves
that right by entering a conditional guilty plea.” United
States v. Abramski, 706 F.3d 307, 314 (4th Cir. 2013), aff’d on
other grounds, 134 S. Ct. 2259 (2014) (internal quotation marks
omitted). “[A]bsent a valid conditional guilty plea, we will
dismiss a defendant’s appeal from an adverse pretrial ruling on
a non-jurisdictional issue.” Id. (internal quotation marks
omitted). Garvin pleaded guilty without the benefit of a plea
agreement and did not seek to preserve his right to appeal the
denial of his motion to suppress. Therefore, we conclude he has
waived his right to appeal the denial of his motion to suppress.
Accordingly, we dismiss the appeal to the extent Garvin
challenges the denial of his motion to suppress and affirm in
all other respects. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
material before this court and argument will not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
5