US v. Kevin Scott, No. 12-4320 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4320 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN ALEXANDER SCOTT, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:09-cr-00581-JFM-1) Submitted: November 20, 2012 Decided: November 30, 2012 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Raymond J. Rigat, Washington, DC, for Appellant. Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin Alexander Scott appeals his conviction following a guilty plea to Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (2006), and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (2006). On appeal, Scott argues that the district court abused its discretion in denying his motion to withdraw his guilty plea. We affirm. In his plea agreement, Scott agreed to waive the right to appeal his conviction and whatever sentence is imposed, reserving months the right to imprisonment. appeal A a sentence defendant may, in excess in a of valid 300 plea agreement, waive the right to appeal under 18 U.S.C. § 3742 (2006). 1990). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. An appellate waiver must be the result of a knowing and intelligent decision to forgo the right to appeal. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and citation omitted). appellate waiver in a plea agreement will not However, an bar appellate review of a district court s denial of a motion to withdraw the underlying guilty plea when the motion contains a colorable claim that the plea agreement is tainted by constitutional error, such as involuntariness or the lack of the effective assistance of counsel. n.2 (4th Cir. 1994). United States v. Attar, 38 F.3d 727, 733 In his motion to withdraw his guilty plea, 2 Scott argued that his plea was not knowing and voluntary because his trial counsel withheld germane information from him during the plea claim process. that his As plea Scott s agreement motion was presents tainted by a colorable constitutional error, the waiver provision does not preclude an appeal of the denial of his motion to withdraw his guilty plea. We review the district court s denial of a defendant s motion to withdraw his guilty plea for an abuse of discretion. United States v. Battle, 499 F.3d 315, 319-20 (4th Cir. 2007). [A] defendant does not have an absolute right to withdraw a guilty plea, even before sentencing. 931 F.2d 245, 248 (4th Cir. 1991). United States v. Moore, To withdraw a guilty plea after entry of the plea but before sentencing, a defendant bears the burden of withdrawal. 248. showing a fair and just reason for the Fed. R. Crim. P. 11(d)(2)(B); Moore, 931 F.2d at [A] fair and just reason for withdrawing a plea is one that essentially challenges . . . the fairness of the Rule 11 proceeding. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). In determining whether a defendant has established a fair and factors. factors just reason for withdrawal, Moore, 931 F.2d at 248. are the most courts consider six The first, second, and fourth significant, as they speak most straightforwardly to the question whether the movant has a fair 3 and just reason to upset settled withdrawing [his guilty] plea. F.3d 1145, 1154 (4th Cir. systemic expectations by United States v. Sparks, 67 1995). Further, an appropriately conducted Rule 11 proceeding raise[s] a strong presumption that the plea is final and binding. Lambey, 974 F.2d at 1394. We conclude that the district court did not abuse its discretion denying Contrary plea. in to Scott s Scott s motion to assertions withdraw on his appeal, his guilty trial counsel did not withhold germane information from him during the plea negotiation process, as the DNA report prepared by the defense s expert witness was not available at the time Scott pled guilty. emphasis on Moreover, the DNA Scott s innocence. although report, the Scott report places does significant not establish To the contrary, the report confirmed the findings of the Government s expert witness. In addition, the trial court conducted a thorough Fed. R. Crim. P. plea colloquy with Scott prior to accepting his guilty plea. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
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