UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4708
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN CHRISTOPHER SOLARES, a/k/a Joker,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00114-MOC-DSC-1)
Submitted: March 24, 2015 Decided: April 6, 2015
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Anthony J. Enright, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adrian Christopher Solares appeals his convictions and 93-
month sentence imposed after he pled guilty to one count each of
conspiracy to interfere with commerce by threats or violence, in
violation of 18 U.S.C. § 1951(a) (2012); possession of a firearm
in furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1) (2012); and conspiracy to use or carry a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(o) (2012). Solares asserts that his guilty plea should be
set aside and his case remanded to the district court for trial
because he argues that: (1) his first attorney rendered
ineffective assistance of counsel when counsel allegedly advised
Solares that he could not plead guilty to some of the counts
against him and proceed to trial on the remaining counts; and
(2) the district court abused its discretion when it denied his
motion to withdraw his guilty plea. Finding no error, we
affirm.
First, we reject Solares’s ineffective assistance of
counsel claim on this appeal. “It is well established that a
defendant may raise a claim of ineffective assistance of counsel
in the first instance on direct appeal if and only if it
conclusively appears from the record that counsel did not
provide effective assistance.” United States v. Galloway, 749
F.3d 238, 241 (4th Cir.) (internal quotation marks, brackets,
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ellipsis, and emphasis omitted), cert. denied, 135 S. Ct. 215
(2014). Absent such a showing, ineffective assistance claims
should be raised in a motion brought pursuant to 28 U.S.C.
§ 2255 (2012), in order to permit sufficient development of the
record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010).
To prevail on an ineffective assistance of counsel claim, a
defendant must demonstrate that: (1) counsel’s performance was
objectively unreasonable; and (2) defendant was prejudiced by
counsel’s performance. Strickland v. Washington, 466 U.S. 668,
687-88 (1984). To demonstrate prejudice, “[t]he defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Within the context of
a guilty plea, prejudice exists if the defendant “show[s] that
there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
To establish that he would have proceeded to trial but for
counsel’s alleged pre-plea error, Solares “must convince the
court that such a decision would have been rational under the
circumstances.” United States v. Fugit, 703 F.3d 248, 260 (4th
Cir. 2012) (internal quotation marks omitted). We have reviewed
the record and find that it does not conclusively appear from
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the record that counsel provided ineffective assistance.
Accordingly, we reject Solares’s ineffective assistance of
counsel claim on this direct appeal.
We reject Solares’s argument that his plea should be set
aside and the matter remanded because the magistrate judge
should have allowed him to withdraw his guilty plea. First,
Solares never appealed the magistrate judge’s ruling to the
district court. Accordingly, Solares has waived appellate
review of this issue. Fed. R. Crim. P. 59; United States v.
Schronce, 727 F.2d 91, 93–94 (4th Cir. 1984) (“We do not believe
. . . that the [Federal Magistrates] Act can be interpreted to
permit a party . . . to ignore his right to file objections with
the district court without imperiling his right to raise the
objections in the circuit court of appeals.”).
In any event, we find no error in the magistrate judge’s
decision to deny Solares’s motion to withdraw. A defendant has
no absolute right to withdraw his guilty plea, and he bears the
burden of “show[ing] a fair and just reason” for doing so. Fed.
R. Crim. P. 11(d)(2)(B); see United States v. Nicholson, 676
F.3d 376, 383-84 (4th Cir. 2012). This court has identified six
factors that the district court should evaluate in deciding
whether to grant a motion for withdrawal of a guilty plea. See
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The
magistrate judge, upon reviewing these factors, concluded that
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Solares failed to make the necessary showing. We find that the
magistrate judge did not abuse his discretion in denying
Solares’s motion.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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