US v. Jamade Jones, No. 09-4052 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4052 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMADE BARSON JONES, a/k/a Jamade Derson Jones, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00050-RLV-CH-1) Submitted: December 15, 2010 Decided: January 21, 2011 Before NIEMEYER, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Reita P. Pendry, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jamade Barson Jones appeals from his conviction and 162-month sentence entered pursuant to his guilty plea to conspiracy to possess with intent to distribute cocaine. On appeal, erred by for his continuance, and Jones (1) failing sentence, asserts to (2) (3) denying that provide denying his motion the district individualized his motion to for withdraw his court reasoning a guilty plea. The Government asserts that Jones waiver of appellate rights in his plea agreement bars claims (1) and (2). We affirm. I. It is well-settled that a defendant may waive in a valid plea agreement the right of appeal under 18 U.S.C. ยง 3742 United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. [2006]. 1990). Whether a defendant has effectively waived the right to appeal is an issue of law that we review de novo. States v. Blick, 408 F.3d 162, 168 (4th Cir. United 2005). In undertaking that review, we will enforce an appellate waiver where such a waiver is knowing and intelligent and the issue sought to waiver. be appealed falls within the scope of the appeal United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). An appellate waiver is generally considered to be knowing and intelligent where the court specifically questioned 2 the defendant regarding the waiver during the Fed. R. Crim. P. 11 colloquy and the record indicates that understood the significance of the waiver. the defendant See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Further, errors that a narrow class the defendant could when contemplated therefore only the agreement are excluded plea from Poindexter, 492 F.3d at 270. the of not claims have was scope involves reasonably executed, of the and waiver. Claims that proceedings following the guilty plea were conducted in violation of the defendant s Sixth Amendment right to counsel, see United States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994), or that a sentence was imposed in excess of the constitutionally statutory maximum impermissible penalty factor such or as based race, on a United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), fall within the category of claims excluded from an appellate waiver. Here, the record shows that the district court questioned Jones regarding the appellate waiver provision at his Rule 11 hearing, and Jones acknowledged that he agreed with and understood the plea agreement. In addition, Jones signed the plea agreement which included an unambiguous waiver of appellate rights. knowingly sentence. Moreover, Jones does not dispute the contention that he and intelligently Accordingly, we waived his right find that Jones 3 to appeal his knowingly and voluntarily agreed to the appellate waiver; therefore, the waiver is valid and enforceable. Jones does not dispute that Claim (1) is barred by his waiver. Thus, we dismiss this claim. The parties do, however, disagree as that to whether Jones claim the district court improperly denied his motion to continue sentencing in order to find new counsel was waived by his plea agreement. As discussed above, claims that proceedings following the guilty plea were conducted in violation of the Sixth Amendment right to counsel are not waivable. that the (which district was Amendment Such is the claim raised here. filed right court, after to in his denying guilty counsel of his motion plea), his own Jones asserts to violated choice. continue his See Sixth United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (discussing right to counsel of choice). fall within the scope of Accordingly, this claim does not Jones appellate waiver and will, instead, be reviewed on the merits. II. The district court s denial of a continuance is reviewed for abuse of discretion. United States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006). The trial court abuses its discretion when its denial of a motion for continuance is an unreasoning and arbitrary insistence upon expeditiousness in the 4 face of a justifiable request for delay. Id. In addition, whether to grant a motion for substitution of counsel is also within a court s discretion. United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). In evaluating whether the trial in court abused its discretion denying a defendant s motion for substitution of counsel, we must consider: (1) the timeliness of the motion; (2) the adequacy of the inquiry into the defendant s complaint about his attorney; and (3) whether the attorney/client conflict was so great that it resulted in total lack of communication preventing an adequate defense. United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004). These factors are weighed against the district court s interest in the orderly administration of justice. addition, a district court has wide Id. at 157. latitude in In limiting a defendant s right to counsel of choice based upon fairness and the demands of the court s calendar. Gonzalez-Lopez, 548 U.S. at 152. Jones motion was untimely filed on the morning of sentencing. He had already replaced one attorney (and received continuances to accommodate) and over a year had passed since he was extradited. basis for reasons Jones for questioning The court made an adequate inquiry into the his the motion, allowing dissatisfaction attorney as to 5 why him to with explain his certain fully attorney motions were the and not filed. The record supports the conclusion that Jones and his attorney were communicating, although they disagreed about the best course of action to take. Moreover, Jones sister testified at the hearing that no other attorneys were interested in taking the case because the case had been pending for so long and sentencing was imminent. Because the district court s ruling was not arbitrary, the court did not abuse its discretion in denying Jones motion for a continuance. III. We review the district court s denial of a motion to withdraw a States v. guilty Dyess, plea 478 for F.3d abuse 224, of 237 discretion. (4th Cir. United 2007). The defendant bears the burden of showing a fair and just reason for the withdrawal 11(d)(2)(B). essentially (4th his guilty plea. Fed. R. Crim. P. [A] fair and just reason . . . is one that challenges proceeding . . . . 1394 of Cir. . . . the fairness of the Rule 11 United States v. Lambey, 974 F.2d 1389, 1992). Courts consider six factors determining whether to permit the withdrawal of a guilty plea: (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 6 in 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). An appropriately conducted strong Rule raise[s] a presumption binding. 11 that proceeding, the plea is however, final and Lambey, 974 F.2d at 1394. On appeal, Jones contends that his attorney lied to him * at As the such, voluntary. he time asserts However, he that of his presents plea no self-serving and conclusory statement. his was not evidence plea. knowing aside from and his In fact, Jones does not even explain what his attorney allegedly lied to him about or how it affected the voluntariness of his plea. In light of the magistrate judge s undisputed full compliance with Rule 11 in accepting Jones guilty plea, Jones has not offered credible evidence that involuntary. his plea Ubakanma, was 215 not F.3d at knowing 424. or otherwise Moreover, Jones informed the magistrate judge during the plea colloquy that he was satisfied with his attorney and had not been threatened or * At the hearing on his motion to withdraw, Jones did not precisely allege that his attorney lied to him. Instead, he asserted that he asked his attorney to move to withdraw his plea and the attorney refused, that his attorney was not working in his best interests, and that he did not receive all the transcripts he requested. 7 coerced to plead guilty, and his statements at the plea hearing indicated that he entered the plea knowingly and voluntarily. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (conclusory allegations in conflict with statements at Rule 11 hearing are subject to summary dismissal); Fields v. Attorney Gen., 956 F.2d 1290, 1299 evidence to (4th the Cir. 1992) contrary, ( Absent a clear defendant and is convincing bound by the representations he makes under oath during a plea colloquy. ). Next, Jones does not, credibly or otherwise, assert his legal innocence. filed years after In addition, his motion to withdraw was he entered his guilty plea. See United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991) (finding that six-week delay militated against withdrawal of plea). Jones assertion that he lacked close assistance of counsel is the only Moore factor that might weigh in his favor; however, he has not shown, nor incompetent. does the Finally, record reveal, allowing Jones that to his attorney withdraw his was plea likely would have prejudiced the Government and inconvenienced the court due to the lengthy passage of time. We therefore conclude that the district court did not abuse its discretion in denying Jones motion to withdraw his guilty plea. Jones also asserts that he was entitled to withdraw his guilty plea because, at the time of his motion, the plea had not yet been accepted by the district court. 8 See Fed. R. Crim. P. 11(d)(1) (a defendant may withdraw plea, for any reason or no reason, before the court accepts it). Specifically, Jones asserts that, because his plea proceeding was conducted by a magistrate judge, the district court was required to conduct a de novo review of his plea. district court did assertion that his not According to Jones, because the conduct attorney the had lied required to him, review the of his magistrate lacked the constitutional authority to accept his plea. However, Jones guilty plea had been accepted by the magistrate judge following an undisputedly complete Rule 11 inquiry as well as a clear waiver of his right to have his plea taken by the district court. A magistrate judge may accept pleas in felony cases, provided the defendant consents and as long as the district court exercises de magistrate judge s decision upon request. novo review of the See United States v. Osborne, 345 F.3d 281, 289-90 (4th Cir. 2003) (holding that, absent request or objection, district court is not bound to conduct de novo review). Although the magistrate judge s acceptance of Jones guilty plea was subject to de novo review, it was still properly entered years prior to his motion to withdraw his guilty plea. The fact that the magistrate judge accepted the plea subject to the district court s review does not invalidate an adequate Rule 11 proceeding by a magistrate judge, or provide a defendant with 9 the absolute right to withdraw. See United States v. Williams, 23 F.3d 629, 634-35 (2d Cir. 1994). disallow withdrawal standard of review. remains subject The court s decision to to the clearly erroneous Id. Moreover, Jones factual assertion that the district court did not conduct de novo review when it failed to consider his allegations is unsupported by the record. As discussed above, Jones never alleged in district court that his attorney lied to him. for The district court fully considered the grounds withdrawal factors. raised by Jones and discussed the Further, Jones allegations had nothing to do with the propriety of the magistrate judge s Rule 11 hearing. Jones relevant only argument in support of his assertion Thus, as that the district court failed to conduct a de novo review is meritless, there are no grounds on which to disregard the magistrate judge s acceptance of Jones plea. Accordingly, we affirm Jones conviction and sentence. This court requires that counsel inform her client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, believes but counsel that such a 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 the client. 10 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 11
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