US v. Jeremy Mosley, No. 08-4689 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4689 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEREMY PERNELL MOSLEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:07-cr-00302-LMB-1) Submitted: June 22, 2009 Decided: July 9, 2009 Before MICHAEL, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Frank Salvato, LAW OFFICES OF FRANK SALVATO, Alexandria, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Daniel J. Grooms, Marla B. Tusk, Assistant United States Attorneys, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jeremy Pernell Mosley pled guilty to one count of conspiracy to distribute fifty grams or more of crack cocaine, and one grams count or of possession more of crack cocaine, §§ 841(a)(1), 846 (2006). to 168 months of with intent in to distribute violation of 21 fifty U.S.C. The district court sentenced Mosley imprisonment, and he timely appealed. On appeal, Mosley argues that the district court erred in denying his motion to withdraw his guilty plea, his motion to dismiss the indictment for transfer the case. lack of jurisdiction, and his motion to We affirm. A district court s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). defendant has the burden reason for withdrawal. F.3d at 424. of demonstrating a fair The and just Fed. R. Crim. P. 32(e); Ubakanma, 215 A fair and just reason is one that challenges the fairness of the guilty plea colloquy conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). In determining whether the trial court abused its discretion in denying a motion to withdraw a guilty plea, six factors are considered: 2 (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. United States Although all v. the Moore, 931 F.2d 245, factors in Moore must 248 (4th Cir. be given 1991). appropriate weight, the key to determining whether to grant a motion to withdraw a guilty properly conducted. (4th Cir. 2004). colloquy. An plea is whether the Rule 11 hearing was United States v. Faris, 388 F.3d 452, 456 This court closely scrutinizes the Rule 11 adequate Rule 11 proceeding creates a strong presumption that the guilty plea is binding. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). Our review of the record leads us to conclude that the district court properly applied the Moore factors and did not abuse its discretion in denying Mosley s motion to withdraw his guilty plea. Mosley also argues that the district court erred in denying his jurisdiction. motion to Mosley s Circuit precedent. dismiss argument the is indictment squarely for lack of foreclosed by United States v. Leshuk, 65 F.3d 1105, 1111- 12 (4th Cir. 1995). 3 Mosley next argues that the district court erred in denying his motion to transfer his case to the Western District of Virginia because venue was improper in the Eastern District. He asserts that the conspiracy charged in Count indictment occurred in the Western District. One of the The venue statute generally applicable to criminal cases provides that [e]xcept as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was § 3237(a) begun, (2006). continued, A or conspiracy completed. may be 18 U.S.C. prosecuted in any district in which an act in furtherance of the conspiracy was committed. United States v. Al-Talib, 55 F.3d 923, 928-29 (4th Cir. 1995). In this case, the AUSA stated in the factual basis, without contradiction by Mosley, that several acts in furtherance of the conspiracy occurred in the Eastern District of Virginia. venue was The district court did not err in concluding that proper Mosley s argument district court in can should the be Eastern District. construed have as transferred To the asserting the case extent that the for the convenience of the parties under Fed. R. Crim. P. 21(b), we find 4 See United the district court did not abuse its discretion. States v. Smith, 452 F.3d 323, 336 n.1 (4th Cir. 2006). Finally, assistance probative of Mosley counsel, as to the asserts stating a that withdrawal of claim this the of ineffective factual guilty issue plea is factors. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2009) motion. See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). exists when assistance. the record conclusively does not deficient manner. demonstrate with Our review reveals that the that counsel performed in a We therefore decline to consider this claim. Accordingly, dispense ineffective United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. record establishes An exception oral we affirm argument Mosley s because the convictions. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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