US v. Ronald Thomas, No. 08-4649 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4649 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RONALD DEMETRIOUS THOMAS, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:06-cr-00405-RWT-1) Submitted: October 20, 2009 Decided: December 4, 2009 Before MICHAEL, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Edward C. Sussman, LAW OFFICE OF EDWARD SUSSMAN, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Barbara S. Skalla, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ronald Demetrious Thomas pled guilty to distributing fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006). imprisonment. He was sentenced to 400 months On appeal, he argues the district court abused its discretion in denying his motion to withdraw his guilty plea and that his sentence is unreasonable. We affirm. On appeal, Thomas first argues that he presented a fair and just reason to withdraw his plea and therefore the court erred in denying his motion. ineffective in failing to Thomas maintains counsel was ascertain the potential sentencing consequences, and in giving Thomas and his sister an unduly optimistic prediction regarding the sentence in an effort to induce a plea. He argues counsel failed to investigate and confirm his criminal history prior to the Fed. R. Crim. P. 11 hearing and, in this respect, properly advise him regarding the applicability of asserts district the the career offender court erred guideline. in He discussing further specific guidelines ranges at the Rule 11 hearing, in violation of United States v. Good, 25 F.3d 218 (4th Cir. 1994). This motion to court withdraw reviews a guilty a district plea for court s abuse of denial of a discretion. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant does not have an absolute right to withdraw a guilty 2 plea. United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003). Once the district court has accepted a defendant s guilty plea, the defendant bears the burden of showing a fair and just reason for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B); United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). essentially [A] fair and just reason . . . is one that challenges proceeding . . . . . . . the fairness of the Rule 11 United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). In deciding whether to permit a defendant to withdraw his guilty plea, a district court should consider: (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). The first, second, and fourth of the Moore factors carry the most weight in defendant these has considerations, a good reason as they concern to upset whether settled the systemic expectations. United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. However, 1995). an appropriately conducted Rule 11 proceeding raise[s] a strong presumption that the plea is final 3 and binding, Lambey, 974 F.2d at 1394, as statements made during a plea hearing carry a strong presumption of verity, Blackledge properly v. Allison, conducted 431 Rule U.S. 11 63, guilty 74 plea (1977). Thus, a colloquy leaves a defendant with a very limited basis upon which to have his plea withdrawn. Bowman, 348 F.3d at 414. The record discloses that the district court s Rule 11 hearing was extensive, motion to withdraw. as was the subsequent hearing on the Further, we afford Thomas guilty plea a strong presumption of validity. ineffective assistance innocence. After reviewing the Moore factors and the district court s articulated of We find no credible evidence of counsel, reasons for undue denying pressure, Thomas or actual motion to withdraw, we find no abuse of discretion in its denial. * * We reject Thomas assertion that the district court tainted the Rule 11 hearing by providing examples of potential guideline ranges lower than the range ultimately applied to him. While we cautioned district courts in United States v. Good, 25 F.3d 218, 223 (4th Cir. 1994), not to give any estimates of guideline ranges in advance of the presentence report as it may turn out to be misleading, as in Good, in this case the court s discussion of guideline ranges was not error. The district court clearly warned Thomas that the guideline ranges were only examples of sentences he could receive, based on multiple variables that had yet to be decided, including his offense level and criminal history category. Moreover, any potential confusion was mitigated by the court s repeated reminders to Thomas that his guideline range would ultimately depend on whether he was found to be a career offender. 4 Thomas also argues his sentence was unreasonable. Specifically, he maintains that the court failed to articulate why the chosen sentence was appropriate, claiming the court s reasoning was inadequate and constitutionally defective. This court reviews a sentence for reasonableness, applying an Gall v. United States, 552 U.S. abuse of discretion standard. 38, , 128 S. Ct. 586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so doing, the court first examines the sentence for significant procedural error, including failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, selecting failing a to failing sentence adequately to consider based on explain Gall, 128 S. Ct. at 597. the clearly the § 3553(a) erroneous chosen sentence factors, facts, or . . . . Finally, the court then consider[s] the substantive reasonableness of the sentence imposed. Id. This court presumes on appeal that a sentence within a properly calculated advisory guidelines range is substantially reasonable. Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption of reasonableness for within-guidelines sentence). Thomas claim regarding his sentence is wholly without merit. of the The district court clearly articulated its consideration § 3553(a) factors. Moreover, 5 the district court s sentence was based on its individualized assessment of the facts of the case. (4th Cir. 2009). determined that understated. United States v. Carter, 564 F.3d 325, 328 The court described the offense conduct and the seriousness of the offense cannot be The court noted that Thomas is a very busy drug dealer who has continued to deal drugs, notwithstanding break after break after break after break from the criminal justice system. The punishment court for concluded somebody with there this simply massive must be record, serious who has taken every break he s been given by every judge and, in effect, thumbed his nose at the criminal justice system and keeps on going without any deterrence whatsoever. The court described Thomas as an unrepentant recidivist drug dealer, who needs to be incarcerated . . . for a long period of time. Based on these considerations, the district court deemed appropriate a sentence within the advisory guidelines of 360 months to life and, accordingly, sentenced Thomas to 400 months imprisonment. We find Thomas within-guidelines sentence is presumptively reasonable on appeal, United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008), and Thomas has not rebutted that presumption. See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (stating presumption may be rebutted by showing sentence is unreasonable when measured against the § 3553(a) factors). 6 Thus, the district court did not abuse its discretion in imposing the chosen sentence. We accordingly affirm Thomas conviction and sentence. 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 7
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