US v. Derrick Massenburg, No. 09-4172 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4172 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK LAMONT MASSENBURG, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-cr-00092-BO-1) Submitted: May 17, 2010 Decided: June 18, 2010 Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Bridgett Britt Aguirre, Fuquay-Varina, North Appellant. Anne Margaret Hayes, Assistant Attorney, Raleigh, North Carolina, for Appellee. Carolina, for United States Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derrick Lamont Massenburg timely appeals from the 363month sentence imposed following his guilty plea to one count of conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371 (2006) (Count 1), one count of armed bank robbery and aiding and abetting same, in violation of 18 U.S.C. §§ 2, 2113(a), (d) (2006) (Count 2), one count of carrying a firearm during a crime of violence and aiding and abetting same, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (2006) (Count 3), and one count of escape and aiding and abetting same, in violation of 18 U.S.C. §§ 2, 751 (2006) (Count 4). pursuant to Anders questioning whether Massenburg s motion counsel, and whether California, 386 district v. court the to Counsel filed a brief dismiss the Count district 3 court U.S. 738 (1967), properly denied and motion erred in for new overruling Massenburg s objection to the two-level obstruction of justice enhancement. was informed Massenburg has not filed a pro se brief, though he of his right to do so. However, Massenburg recently filed a notice of supplemental authorities, pursuant to Federal Rule of Appellate Procedure 28(j), sentence on Count 3 is unconstitutional. arguing that his Finding no reversible error, we affirm. Massenburg first questions whether the district court properly denied his pro se motion 2 to dismiss Count 3 after entering his guilty plea. Massenburg s motion as The district court properly treated one to withdraw his guilty plea. A defendant may be permitted to withdraw his guilty plea prior to sentencing if he can show a fair and just reason for requesting the withdrawal. Fed. R. Crim. P. 11(d). However, because there is no absolute right to withdraw a guilty plea, . . . the district court has discretion to decide whether a fair and just reason exists. United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (internal quotation marks omitted). Thus, we review the district court s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). We consider the following factors in determining whether a defendant should be permitted to withdraw his guilty plea: (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 v. Moore, 931 F.2d 245, 248 (4th Cir. 1991); see also Bowman, 348 F.3d at 414. However, [t]he most important consideration in resolving a motion to withdraw a guilty plea is 3 an evaluation of the Rule 11 colloquy at which the plea was accepted. 11 Bowman, 348 F.3d at 414. colloquy raise[s] final and binding. a strong A properly conducted Rule presumption that the plea is United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). First, counsel does not identify any error in the plea colloquy or assert that Massenburg s plea was not knowing or voluntary. Our review of the record reveals that the district court substantially complied with the Rule 11 requirements in accepting Massenburg s guilty plea. credibly assert his innocence. the sentencing hearing, Second, Massenburg did not Both in his motion and during Massenburg admitted that defendant carried a gun during the robbery. admitted at the sentencing hearing that he his co- Massenburg also carried the gun during his escape from the robbery. Turning to the remaining factors, although the district court determined the two-month delay between the guilty plea and motion was not unreasonable, this is arguably the only But see Moore, 931 F.2d factor weighing in Massenburg s favor. at 248 (finding that six-week delay motion to withdraw was too long). between guilty plea and Moreover, although Massenburg sought to have new counsel appointed two months after he pled guilty, the ineffective record does assistance. not show Additionally, 4 that counsel allowing provided Massenburg to withdraw his guilty plea would also prejudice the Government and waste judicial resources, due to the passage of time and the fact that a trial would be necessary. the district court did not abuse Accordingly, we find that its discretion in denying Massenburg s motion. Massenburg next questions whether the district court erred in denying his motion for new counsel. does . . . not have an absolute right to [A] defendant substitution of counsel. As a general rule, a defendant must show good cause in requesting a new appointed lawyer. F.3d 891, 895 (4th Cir. 1994). United States v. Mullen, 32 We review the district court s denial of new counsel for abuse of discretion, considering the following factors: [t]imeliness of the motion; adequacy of the court s inquiry into the defendant s complaint; and whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense. Id. We conclude that Massenburg did not timely move for new counsel, considering his motion was not made until more than two months after he pled guilty. the district court adequately Additionally, it is clear that inquired complaint during the sentencing hearing. into Massenburg s Finally, it does not appear that the conflict between Massenburg and counsel was so great that it prevented an adequate defense, considering that 5 Massenburg repeatedly admitted guilt as to Counts 1, 2, and 4, and also admitted that he carried the gun while escaping. Therefore, we find that the district court did not abuse its discretion in denying Massenburg s motion for new counsel. Finally, Massenburg questions whether the district court erred in applying a two-level enhancement for obstruction of justice. the defendant We review the district court s determination that obstructed justice for clear error. United States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005). Counsel objected to the enhancement, claiming that the information used to apply it was obtained by way of proffer. However, the Presentence Investigation Report reveals that the information was obtained from recorded telephone conversations that took place prior to the proffer. the district court did not clearly Therefore, we find that err in applying the enhancement for obstruction of justice. In accordance with Anders, we have examined the entire record and find no meritorious issues for appeal. affirm the district court s judgment. We therefore 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 6

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