UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5036
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY RANDALL BELK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:11-cr-00337-HFF-1)
Submitted: April 24, 2012 Decided: May 3, 2012
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Randall Belk pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
(2006). Belk qualified as an armed career criminal, 18 U.S.C.
§ 924(e) (2006), and the district court varied downward from his
advisory guidelines range and sentenced him to the statutory
mandatory minimum sentence of 180 months’ imprisonment. Belk’s
attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but questioning whether the
district court erred in failing to grant Belk’s pro se motion to
withdraw his guilty plea. Belk was advised of his right to file
a pro se supplemental brief, but has not done so. The
Government declined to file a brief. We affirm.
Belk bore the burden of showing a “fair and just
reason” for withdrawing his guilty plea. Fed. R. Crim. P.
11(d)(2)(B); United States v. Battle, 499 F.3d 315, 319 (4th
Cir. 2007). “[A] ‘fair and just’ reason . . . is one that
essentially challenges . . . the fairness of the Rule 11
proceeding.” United States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992). “[R]eversal is warranted only if the plea
proceedings were marred by a fundamental defect that inherently
resulted in a complete miscarriage of justice, or in omissions
2
inconsistent with rudimentary demands of fair procedure.” United
States v. Ubakanma, 215 F.3d 421, 425 (4th Cir. 2000).
In deciding whether to permit withdrawal, a court
should consider the six factors identified in Ubakanma, 215 F.3d
at 424. Although all the factors in Ubakanma should be given
appropriate weight, the key to determining whether a motion to
withdraw should be granted is whether the Rule 11 hearing was
properly conducted. United States v. Bowman, 348 F.3d 408, 414
4th Cir. 2003). This court closely scrutinizes the Rule 11
colloquy and attaches a strong presumption that the plea is
final and binding if the Rule 11 proceeding is adequate.
Lambey, 974 F.2d at 1394.
We have reviewed the Ubakanma factors and conclude
that Belk has not carried his burden. Although Belk made bare
assertions in his motion that his plea was involuntary and that
he was not afforded the assistance of counsel, * these assertions
are contradicted by his sworn statements during his properly
conducted Rule 11 hearing. Accordingly, we conclude the
district court did not commit reversible error.
*
To the extent Belk’s motion could be construed as an
allegation of ineffective assistance of plea counsel, there is
no conclusive evidence of ineffective assistance of counsel on
the face of this record. See United States v. King, 119 F.3d
290, 295 (4th Cir. 1997).
3
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Belk, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Belk requests that a petition be filed, but
counsel believes that such petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Belk. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
4