US v. Richard Nickell, No. 09-4666 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4666 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD HENRY NICKELL, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, District Judge. (6:08-cr-00026-nkm-1) Submitted: May 17, 2010 Decided: June 8, 2010 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael Morchower, Richmond, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Nancy S. Healey, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Richard Henry Nickell pled guilty, without a plea agreement, to possession of a firearm by a user of controlled substances, in violation of 18 U.S.C. § 922(g)(3) (2006), and possession of marijuana, in violation of 21 U.S.C. § 844 (2006). The district court sentenced Nickell to two months of imprisonment on each count, to run concurrently, three years of supervised release, a $1000 fine, and a $125 special assessment. Nickell timely appealed. district court guilty plea. erred On appeal, Nickell argues that the in denying his motion to withdraw his He asserts that he demonstrated that his plea was not knowing and voluntary and that he did not have the close assistance of counsel. We affirm. A district court s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). defendant has the burden of demonstrating a fair and The just reason for withdrawal. Fed. R. Crim. P. 11(d)(2)(B); Ubakanma, 215 fair F.3d at 424. A and just reason is one that challenges the fairness of the guilty plea colloquy conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). In determining whether the trial court abused its discretion in denying a motion to withdraw a guilty plea, six 2 factors are considered. 248 (4th Cir. 1991). United States v. Moore, 931 F.2d 245, The district court specifically considered and discussed the Moore factors in its order denying Nickell s motion to withdraw his plea. Our review of the record leads us to did conclude concluding that that the court Nickell failed not to abuse its establish a discretion fair in and just convictions and reason to allow withdrawal of his plea. Accordingly, sentence. legal before affirm Nickell s We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3
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