UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4753
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEONARD MINCY, a/k/a Mike,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:10-cr-00012-GEC-1)
Submitted: April 11, 2012 Decided: May 23, 2012
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul A. Dull, Roanoke, Virginia, for Appellant. Timothy J.
Heaphy, United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonard Mincy appeals his convictions for conspiracy
to possess with intent to distribute and to distribute heroin,
in violation of 21 U.S.C. § 846 (2006), and possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). Specifically, he challenges the district
court’s denial of his motion to withdraw his guilty plea. 1 For
the reasons that follow, we affirm.
We review the 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). “[A] defendant
does not have an absolute right to withdraw a guilty plea, even
before sentencing.” United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991). Instead, he must show a “fair and just reason”
for withdrawing his plea. Id.
1
In his Statement of Issues, Mincy also included a
challenge to his sentence, but provided no argument to support
his claim. Accordingly, Mincy forfeited appellate review over
this assignment of error. See Fed. R. App. P. 28(a)(9) (“[T]he
argument . . . must contain . . . appellant’s contentions and
the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies.”); see also
Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir.
2006) (conclusory assignments of error without supporting
argument are insufficient to preserve a merit-based challenge to
a district court’s order on appeal); IGEN Int’l, Inc. v. Roche
Diagnostics GmbH, 335 F.3d 303, 308 (4th Cir. 2003) (holding
that a “[f]ailure to present or argue assignments of error in
opening appellate briefs constitutes a waiver of those
issues[,]” even when it appears the district court was wrong).
2
In determining whether Mincy has carried his burden,
the court considers six factors:
(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 the 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. Although all the factors in Moore must
be given appropriate weight, the key in determining whether a
motion to withdraw should be granted is whether the Fed. R.
Crim. P. 11 hearing was properly conducted. United States v.
Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). 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 was adequate. United States v. Lambey, 974 F.2d
1389, 1394 (4th Cir. 1992).
We have reviewed the record in light of the Moore
factors and conclude that Mincy has not carried his burden. The
district court substantially complied with the mandates of Rule
11 in accepting Mincy’s guilty plea, ensuring that Mincy’s plea
was knowing and voluntary and was supported by a sufficient
factual basis. United States v. DeFusco, 949 F.2d 114, 116,
119-20 (4th Cir. 1991). Moreover, Mincy informed the district
3
court during the plea colloquy that he had not been threatened
or coerced to plead guilty, and his statements at the plea
hearing indicated that he entered the plea knowingly and
voluntarily. Blackledge v. Allison, 431 U.S. 63, 74 (1977); see
Fields v. Attorney Gen., 956 F.2d 1290, 1299 (4th Cir. 1992)
(“Absent clear and convincing evidence to the contrary, a
defendant is bound by the representations he makes under oath
during a plea colloquy.”). Additionally, Mincy has not asserted
his innocence, there was a significant delay between the entry
of the plea and the motion to withdraw the plea, and both the
Government and the courts would be burdened by allowing him to
withdraw his guilty plea.
Mincy argues that his expectation that he would not be
sentenced as an armed career criminal establishes a fair and
just basis for withdrawing his guilty plea. We disagree. Even
accepting counsel’s own argument that his representation was
substandard because he erroneously concluded that his client
would not qualify for the armed career criminal enhancement,
Mincy acknowledged in his signed plea agreement that he knew he
could face a mandatory minimum fifteen-year prison term if he
was designated an armed career criminal. He acknowledged this
possibility again under oath at the plea hearing before entering
his guilty plea. He also confirmed under oath that no one had
promised him a particular sentence. Based on our consideration
4
of the Moore factors, we conclude the district court did not
abuse its discretion in denying the motion to withdraw the
guilty plea. 2 See United States v. Foster, 68 F.3d 86, 87-88
(4th Cir. 1995) (holding that counsel’s inaccurate sentencing
predictions generally do not constitute ineffective assistance).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
2
To the extent that Mincy asserts an independent argument
that he was denied effective assistance of counsel, we conclude
that the claim is not cognizable on direct appeal as the record
does not conclusively show that counsel was ineffective. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
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