United States v. Queen

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 94-5814
SAMUEL ROBERT QUEEN, JR., a/k/a
Fat Sammy,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 95-5022
SAMUEL ROBERT QUEEN, JR., a/k/a
Fat Sammy,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 95-5112
SAMUEL ROBERT QUEEN, JR., a/k/a
Fat Sammy,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black Jr., Senior District Judge.
(CR-93-369-B)
Argued: June 7, 1996

Decided: August 30, 1996

Before HALL and ERVIN, Circuit Judges, and JACKSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Edwin R. Burkhardt, Jr., Baltimore, Maryland, for Appel-
lant. Jan Paul Miller, Assistant United States Attorney, UNITED
STATES ATTORNEY'S OFFICE, Greenbelt, Maryland, for Appel-
lee. ON BRIEF: Alan C. Drew, Upper Marlboro, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Stephen S.
Zimmermann, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Samuel Robert Queen, Jr., seeks review of the district
court's decision to deny his motion to withdraw the guilty plea he
entered, as well as the court's refusal to depart downward in sentenc-
ing. Finding no merit in Queen's arguments, we affirm the decision
below.

I.

Queen was indicted on one count of conspiracy to possess heroin
with the intent to distribute. He retained James Savage as counsel and

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pled not guilty at his arraignment on September 20, 1993. He was
rearraigned on January 27, 1994, and pled guilty. At the comprehen-
sive Rule 11 hearing, Queen stated that he had no trouble reading and
writing. He stated that his treatment for a mental illness around the
ages of 10-14 would not affect his present ability to make important
decisions. When asked whether he was satisfied with Savage's coun-
sel, Queen responded, "Yes, so far." The court asked, "Mr. Queen, do
you in fact admit that you did commit the crime charged in count one
of the indictment?" Queen responded, "Yes, I do." Later Queen noted
that he did not "totally agree with everything in the [government's]
statement of facts," but understood that if the matter went to trial
"they could possibly prove this."

On February 22, 1994, Queen moved to vacate his guilty plea, and
Savage moved to withdraw as counsel. The district court granted Sav-
age's motion to withdraw and appointed Brian Murphy to represent
Queen; the court later denied Queen's motion to withdraw his guilty
plea. Queen filed a number of pro se motions seeking to remove Mur-
phy as his counsel, all of which the district court denied. On February
15, 1994, the district court sentenced Queen to 360 months' imprison-
ment, to be followed by five years of supervised release. On February
24, Murphy sought leave to withdraw as Queen's appointed counsel.
The Fourth Circuit relieved Murphy and appointed Alan Drew as
Queen's new counsel, and later relieved Drew and appointed Scott
Kamins. Yet another attorney, Edwin Burkhardt, replaced Kamins
and presented Queen's oral argument.

II.

Queen now seeks review of the district court's decision to deny his
motion to withdraw the guilty plea. Federal Rule of Criminal Proce-
dure 11 controls the entry of guilty pleas. Before accepting a plea, the
district court must address the defendant in open court and ensure that
the plea is voluntary, and that the defendant understands the conse-
quences of the plea, the possible penalties, and the rights that will be
relinquished by pleading guilty (for example, the right to a trial by
jury and the right to confront witnesses). Fed. R. Crim. P. 11(c), (d).
Rule 11 specifies that a district court "should not enter a judgment
upon [a guilty] plea without making such inquiry as shall satisfy it
that there is a factual basis for the plea." The district court has wide

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discretion in determining whether there is a factual basis for a guilty
plea. United States v. Morrow, 914 F.2d 608, 611 (4th Cir. 1990). A
district court's decision to accept a guilty plea is reviewed for clear
error. Kibert v. Blankenship, 611 F.2d 520, 525 (4th Cir. 1979), cert.
denied, 446 U.S. 911 (1980).

Rule 32(e) governs a defendant's attempt to withdraw a guilty plea,
and provides that if a motion "is made before sentence is imposed, the
court may permit the plea to be withdrawn if the defendant shows any
fair and just reason." Fed. R. Crim. P. 32(e). The Advisory Committee
Notes to Rule 32(d), which formerly embodied this rule, explain that
the burden is on the defendant to show a "fair and just" reason for
withdrawing. In the Fourth Circuit, "[a]n appropriately conducted
Rule 11 proceeding" creates "a strong presumption that the plea is
final and binding." United States v. Lambey , 974 F.2d 1389, 1394 (4th
Cir. 1992) (en banc), cert. denied, 115 S. Ct. 672 (1994). This court
has also enumerated factors that bear on whether the defendant has
met his or her burden under Rule 32:

(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 with-
drawal will cause prejudice to the government, and (6)
whether it will inconvenience the court and waste judicial
resources.

United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied,
502 U.S. 857 (1991). The decision to allow withdrawal of a guilty
plea is left to the district court's discretion, and so is reviewed on
appeal for abuse of discretion. United States v. Puckett, 61 F.3d 1092,
1099 (4th Cir. 1995); Lambey, 974 F.2d at 1393.

The district court concluded that Queen failed to show a fair and
just reason for withdrawing his guilty plea. Though the court
acknowledged that some factors might weigh in favor of allowing
Queen to withdraw his plea, it found two Moore factors--whether the

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plea was entered knowingly and voluntarily and whether it was
entered with the assistance of competent counsel--to be dispositive:

Despite the somewhat strained relationship between
Queen and his attorney, James Savage, the evidence indi-
cates that Savage was an experienced defense lawyer who
acted to advance the interest of his client. At the Rule 11
proceeding Queen expressed satisfaction with Mr. Savage's
representation, in particular with his advice regarding the
guilty plea.

This Court finds that Queen entered his plea with the
close assistance of competent counsel. The Court finds that
defendant knowingly and voluntarily entered his plea. . . .

Based on the evidence, the Court finds the defendant
knew what he was doing when he accepted the plea agree-
ment. Defendant's course of action shows that having solidi-
fied a thirty year maximum sentence his motion to withdraw
is essentially an attempt to negotiate a better agreement.

Joint Appendix at 494-96 (transcript of oral opinion).

As the first proffered basis for withdrawal of his plea, Queen
argues that his Rule 11 proceeding was "defective" because the dis-
trict court did not know about "the serious conflict between the appel-
lant and his counsel concerning the entry of a guilty plea." But Queen
specifically stated that he was satisfied with his counsel's representa-
tion "so far," and his signature on the plea agreement acknowledged,
"I am fully satisfied with my attorney." We find that the Rule 11 hear-
ing in the district court was thorough and more than adequate to
ensure that the plea was entered appropriately.

Queen also argues that there was not a sufficient factual basis on
which the district court could accept his guilty plea. He contends that
he simply acknowledged that the government might be able to prove
its case against him. But he did in fact admit that he had committed
the crime charged, and Rule 11 does not require that a criminal defen-
dant agree with every detail in the government's statement of facts.

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The district court did not abuse its discretion by finding a factual basis
for Queen's guilty plea.

III.

Finally, Queen argues that the district court should have granted his
request to depart downward in sentencing based on his "role in avert-
ing the necessity of a trial in connection with the other defendants."
He argues that such a departure is appropriate under 18 U.S.C.
§ 3553(b), which allows departures based on mitigating circum-
stances not "adequately taken into consideration by the Sentencing
Commission in formulating the guidelines."

Queen's argument is foreclosed by United States v. Dorsey, in
which the Fourth Circuit considered a similar argument by one of
Queen's co-defendants and held that "`substantial assistance to the
judicial system' is not a proper basis for departure." United States v.
Dorsey, 61 F.3d 260, 262 (4th Cir. 1995), cert. denied, 116 S. Ct. 732
(1996). The court held that the Guidelines addressed"substantial
assistance to the Government," and "[p]utting a different label on a
circumstance adequately considered by the Sentencing Commission
and calling it a different circumstance, does not transform it into an
appropriate basis for departure." Id. at 263.

IV.

We find no abuse of discretion in the district court's decision to
deny Queen's effort to withdraw his guilty plea, and find Queen's
argument for a departure from the Sentencing Guidelines to be with-
out merit. Accordingly, the decision below is

AFFIRMED.

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