UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4619
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL LAVANDO HARRISON, a/k/a Big Mike,
Defendant - Appellant.
No. 15-4634
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL LAVANDO HARRISON,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge (5:13-cr-00157-F-1); Malcolm J. Howard, Senior
District Judge. (5:01-cr-00203-H-1)
Submitted: July 14, 2016 Decided: September 1, 2016
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Clarke Speaks, SPEAKS LAW FIRM, Wilmington, North Carolina,
for Appellant. John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In 2003, Michael Lavando Harrison was convicted of
possession with intent to distribute cocaine base (crack) and
marijuana, in violation of 21 U.S.C. § 841 (2012); and use of a
firearm in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c) (2012). The district court
originally sentenced Harrison to 188 months of imprisonment for
the drug offense, plus the statutory mandatory minimum term of
60 months of imprisonment for the firearm offense, followed by
60 months of supervised release. The court subsequently reduced
the sentence for the drug offense to 116 months.
Harrison was released onto supervision in 2012. In May
2013, Harrison was indicted for two counts of possession with
intent to distribute crack, in violation of 21 U.S.C. § 841.
Harrison pleaded guilty to the new charges and the district
court sentenced Harrison to 78 months of imprisonment. Based on
that guilty plea, the district court also revoked Harrison's
supervised release and sentenced him to 18 months of
imprisonment, to run consecutive to the new sentence. Harrison
timely appealed both judgments.
In appeal No. 14-4619, Harrison argues that the district
court erred in denying his motion to withdraw his guilty plea.
We review a district court’s denial of a motion to withdraw a
guilty plea for abuse of discretion. United States v. Dyess,
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478 F.3d 224, 237 (4th Cir. 2007). A defendant seeking to
withdraw his guilty plea bears the burden of demonstrating that
withdrawal should be granted. Id. In deciding whether to
permit a defendant to withdraw his guilty plea, a district court
should consider:
(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).
However, “[t]he most important consideration in resolving a
motion to withdraw a guilty plea is an evaluation of the Rule 11
colloquy at which the guilty plea was accepted.” United
States v. Nicholson, 676 F.3d 376, 384 (4th Cir. 2012) (internal
quotation marks omitted). The district court’s inquiry is thus
ordinarily confined to whether the underlying plea was counseled
and voluntary and “a properly conducted Rule 11 guilty plea
colloquy leaves a defendant with a very limited basis upon which
to have his plea withdrawn.” Id. Such a Rule 11 colloquy
raises a strong presumption that the plea is final and binding.
Id. We have thoroughly reviewed the record and conclude that
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the court did not abuse its discretion in denying Harrison’s
motion to withdraw his guilty plea.
The Rule 11 colloquy is devoid of legal error. Harrison’s
claim that he learned of the plea agreement only one day before
trial is belied by the record, which reflects that he mentioned
the plea deal in a letter to the court complaining about the
performance of his prior counsel. In any event, even accepting
Harrison’s assertion as true, neither this fact nor his
allegation that the Government threatened to file additional
charges against him based on his actions while incarcerated
demonstrate that his plea was the product of duress.
Moreover, Harrison offered no credible assertion of his
legal innocence. He attacked the credibility of a confidential
informant’s statements regarding the drug weights from certain
purchases made from Harrison, but these purchases had no bearing
on the controlled purchases upon which the charges against him
were based.
Nor did Harrison show that he lacked close assistance of
competent counsel. To do so, he had to demonstrate that (1) his
counsel’s performance fell below an objective standard of
reasonableness and (2) there was a reasonable probability that,
but for counsel’s error, he would not have pleaded guilty and
would have insisted on going to trial. See United States v.
Bowman, 348 F.3d 408, 416 (4th Cir. 2003). Harrison’s bald
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assertions that his attorneys were all ineffective for trying to
persuade him to plead guilty fail to demonstrate that their
performance fell below an objective standard of reasonableness,
and Harrison has not shown that his attorney’s advice to plead
guilty due to the significant chance of being found guilty at
trial based on the evidence was erroneous.
Finally, while the three-month delay between Harrison’s
guilty plea and his first assertion regarding his unhappiness
with his third-appointed counsel was not lengthy, it is clear
that Harrison filed the motion in response to the presentence
report, which has no bearing on the voluntariness of his plea as
the court explained that he could not withdraw his plea if he
received a sentence longer than expected. Accordingly, we
conclude the court did not abuse its discretion in denying
Harrison’s motion to withdraw his guilty plea.
In appeal No. 14-4634, Harrison argues that the district
court abused its discretion in finding that he had violated the
terms of his supervised release. We review the district court’s
revocation of supervised release for abuse of discretion, and
the court's factual determinations underlying the conclusion
that a violation occurred for clear error. United States v.
Padgett, 788 F.3d 370, 373 (4th Cir. 2015). The district court
need only find a violation of a term of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2012);
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see United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
This standard requires only that existence of a fact be more
probable than its nonexistence. Padgett, 788 F.3d at 374. We
conclude that the court did not abuse its discretion in finding
a violation of Harrison's supervised release based on his guilty
plea to the new offense.
Accordingly, we affirm the district court's orders. 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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