UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4445
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVONE SHARNELL BEST,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00064-D-1)
Submitted: March 26, 2015 Decided: April 20, 2015
Before AGEE, KEENAN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Shailika S. Kotiya, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Devone Sharnell Best pled guilty, pursuant to a written
plea agreement, to one count of distributing crack cocaine, 21
U.S.C. § 841(a)(1) (2012), and was sentenced to 180 months’
imprisonment. He appeals, claiming that the district court
erred in denying his motion to withdraw his guilty plea and that
he was denied effective assistance of counsel. Best also claims
prosecutorial misconduct in the negotiation of his plea.
Finding no error, we affirm.
After the court accepts a guilty plea, but before
sentencing, a defendant may withdraw his guilty plea if he “can
show a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d). The Rule does not afford a defendant an
absolute right to withdraw a guilty plea, however. United
States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003); United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). We review a
district court’s denial of a motion to withdraw a guilty plea
for abuse of discretion. United States v. Ubakanma, 215 F.3d
421, 424 (4th Cir. 2000).
The burden of “show[ing] a fair and just reason” for
withdrawal of the plea rests with the defendant. Id. A fair
and just reason “essentially challenges the fairness” of the
Rule 11 proceeding. Id. (internal quotation marks omitted).
We have developed a nonexclusive list of factors for the
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district court to use in deciding if the defendant has met his
burden:
(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.
Moore, 931 F.2d at 248.
“The most important consideration in resolving a motion to
withdraw a guilty plea is an evaluation of the Rule 11 colloquy.
. . . Accordingly, a properly conducted Rule 11 . . . colloquy
leaves a defendant with a very limited basis upon which to have
his plea withdrawn.” Bowman, 348 F.3d at 414. “If an
appropriately conducted Rule 11 proceeding is to serve a
meaningful function, on which the criminal justice system can
rely, it must be recognized to raise a strong presumption that
the plea is final and binding.” United States v. Lambey, 974
F.2d 1389, 1394 (4th Cir. 1992) (en banc).
With these standards in mind, and having reviewed the
transcript of the Rule 11 hearing, we conclude that the district
court did not abuse its discretion in finding that Best failed
to show a fair and just reason to withdraw his plea.
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Best also asserts that counsel was ineffective for failing
to properly advise him of the possibility of a career offender
enhancement at sentencing. Unless an attorney’s ineffectiveness
conclusively appears on the face of the record, ineffective
assistance claims are not generally addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead, such 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). Because the
record does not conclusively establish ineffective assistance of
counsel, we conclude that Best’s claim should be raised, if at
all, in a § 2255 motion.
Finally, Best asserts that the Government engaged in
misconduct by engaging in bad faith plea negotiations.
Specifically, he asserts that the government failed to inform
him that he would be subject to the career offender enhancement,
and that the government stipulated to a drug quantity with
Best’s counsel, knowing that the career offender enhancement
would apply. To succeed on this claim, Best must demonstrate
that the prosecution’s conduct was, in fact, improper, and that
he was deprived of a fair trial as a result. United States v.
Powell, 680 F.3d 350, 358 (4th Cir. 2012). Best has not made
such a showing.
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Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this Court and argument would not aid in
the decisional process.
AFFIRMED
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