US v. Everette Mills, No. 08-4453 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4453 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EVERETTE EMERSON MILLS, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:06-cr-00474-NCT-2) Submitted: February 19, 2009 Decided: March 24, 2009 Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Everette Emerson Mills pled guilty, pursuant to a plea agreement, to one count of conspiring to possess with intent to distribute five containing a kilograms detectable or more amount of of a cocaine, 21 U.S.C. ยงยง 841(b)(1)(A), 846 (2006). plea agreement that kilograms of cocaine. he was mixture or in substance violation of Mills stipulated in his accountable for at least fifteen At the conclusion of Mills plea hearing, the district court found Mills plea knowing and voluntary and accepted it. The court sentenced Mills to ninety-four months imprisonment, and Mills timely appealed. On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). In his Anders brief, Mills contends that the district court erred in denying his request to withdraw his guilty plea and that the district court abused its discretion in finding a factual basis existed for his plea. In his pro se supplemental brief, Mills argues that the Government violated his immunity agreement and that the district court erred in determining his base offense level. We affirm. Mills first argues that the district court erred in denying his motion to withdraw his guilty plea. reviews a district court s refusal to allow withdraw a guilty plea for abuse of discretion. v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). 2 a This court defendant to United States A defendant may withdraw a guilty plea before sentence is imposed if the defendant can show a fair and just reason for requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B). Six factors are considered in reviewing the district court s denial of a motion to withdraw a guilty plea. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). This court closely scrutinizes the Fed. R. Crim. P. 11 colloquy and attaches a strong presumption that the plea final and binding if the Rule 11 proceeding is adequate. States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. is United 1992). A voluntary and intelligent plea of guilty is an admission of all the elements of a formal criminal charge . . . and constitutes an admission United of States all v. material Willis, (quotations omitted). 992 facts F.2d alleged 489, in 490 the (4th charge. Cir. 1993) We have reviewed the record and conclude that, to the extent that Mills moved to withdraw his guilty plea during his first sentencing hearing, the district court did not abuse its discretion in denying his motion. Mills next claims the district court abused its discretion in accepting his guilty plea because the plea was not supported by a factual basis. This court reviews a district court s finding of a factual basis for abuse of discretion, and . . . will not find an abuse of discretion so long as the district court could reasonably have determined that there was a 3 sufficient factual basis on the record before it. United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008) (quoting United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007)). A district court may conclude that a factual basis exists to support a plea from anything that appears on the record. United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Mills admitted he was involved in a conspiracy to distribute cocaine, twice acknowledged that he was responsible for at least fifteen kilograms of Government s cocaine, factual and stated basis. his agreement Accordingly, the with the record was sufficient to establish a factual basis on which the court could accept Mills plea. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. In doing so, we have considered the arguments asserted in Mills pro se supplemental brief and find them to be without merit. We therefore deny Mills motion to produce record on appeal and motion of errata and affirm Mills conviction and sentence. This court requires that counsel inform Mills, in writing, of the right to petition the Supreme Court of the United States for further review. If Mills requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court 4 for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Mills. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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