US v. Lonnie Bivens, No. 10-4016 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4016 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LONNIE BIVENS, a/k/a Miz, Defendant - Appellant. No. 10-4295 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. REGINALD GLOVER, a/k/a Chicago, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:08-cr-00382-JFM-1; 1:08-cr-00382-JFM-2) Submitted: February 25, 2011 Decided: March 17, 2011 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Howard Margulies, Columbia, Maryland; James Wyda, Federal Public Defender, Joanna Silver, Staff Attorney, Baltimore, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Kwame J. Manley, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Lonnie Bivens and Reginald Glover pled guilty to conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). Bivens was offender to 262 months imprisonment. 240 months 11(c)(1)(C) Bivens imprisonment plea claims pursuant agreement. that his In sentenced a career Glover was sentenced to to a these sentence as was Fed. R. consolidated Crim. P. appeals, unconstitutional and procedurally unreasonable, and Glover claims that the district court abused its discretion by denying his motion to withdraw his guilty plea. Bivens does not challenge the district court s finding that he qualified for sentencing as a career offender under U.S. Sentencing Guideline challenge the Manual court s Guidelines range. § 4B1.1 calculation (2009). of the Nor career does he offender Instead, he claims that the district court relied on his bare record of arrests to determine his sentence in violation of his due process rights. that such unreasonable. We reliance rendered his Bivens also contends sentence procedurally We disagree. review a sentence for reasonableness, abuse of discretion standard of review. 552 U.S. 38, 50 (2007). using an Gall v. United States, The first step in this review requires 3 us to ensure that the district court committed no significant procedural error. (4th Cir. calculate United States v. Evans, 526 F.3d 155, 161 2008). (or Procedural improperly errors include calculating) the failing Guidelines to range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall, 552 U.S. at 51. The Court then considers the substantive reasonableness of the sentence, taking into account the totality of the circumstances. In cases where, as Id. here, a defendant advances a constitutional challenge to his sentence, we review the claim de novo. United States v. conclude that the Copeland, 321 F.3d 582, 601 (6th Cir. 2003). We district career have court reviewed properly offender the found sentence record that based on and Bivens his two convictions, and not on his arrest record. was subject prior to a qualifying We also conclude that the district court properly calculated Bivens s Guidelines range at 262 to 327 months imprisonment, and by imposing a sentence at the bottom of that range, sentence based on records of arrest. did Berry, 553 F.3d 273, 294 (3d enhance his Thus, we find that Bivens has not established a due process violation. v. not Cir. See United States 2009) (holding that constitutional due process is offended whenever a sentence is 4 increased based on inadequate evidence, such as a bare arrest record). Nor district has court Bivens established considered the procedural relevant 18 error. U.S.C. The § 3553(a) (2006) factors, made an individualized assessment based on the facts presented, and adequately explained the reasons for the chosen sentence sufficient to convince us that it considered the parties arguments and had a reasoned basis for its decision. Bivens s contention considered his Accordingly, that arrest we the records conclude district is that court unsupported Bivens s by improperly the sentence record. is not procedurally unreasonable. Glover claims that the district court abused its discretion by not conducting a hearing to determine whether he had advanced a fair and just reason for withdrawing his guilty plea, and by not allowing him to withdraw his guilty plea. We review to a district court s denial of a defendant s withdraw his guilty plea for abuse of discretion. motion United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir. 1992) (en banc). A defendant does not have an absolute right to withdraw a guilty plea. 1991). United States v. Moore, 931 F.2d 245, 248 (4th Cir. Nor is a defendant automatically entitled to an evidentiary hearing whenever he seeks to withdraw a guilty plea. Id. While a district court 5 should liberally grant an evidentiary hearing when a defendant seeks to withdraw a guilty plea, the advances withdraw. hearing a fair need and only just be reason granted when supporting the the defendant request to resolving a Id. The most important consideration in motion to withdraw a guilty plea is an evaluation of the Rule 11 colloquy at which the guilty plea was accepted. United States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003); United States v. Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996). If the plea was knowingly and voluntarily entered with the close assistance of competent counsel during a properly conducted Rule 11 guilty plea colloquy, the defendant is left with a very limited basis upon which to have his plea withdrawn. The district court may, Bowman, 348 F.3d at 414. however, consider several other factors in determining whether the defendant had advanced a fair and just reason. Id. They include: (1) whether the defendant has offered credible evidence that his plea was not knowing and voluntary; (2) whether the defendant has credibly asserted legal innocence; (3) whether there has been a delay between the entering of the guilty plea and the filing of the motion; (4) whether the 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. Moore, 931 F.2d at 248. 6 We have reviewed the record and conclude that Glover s plea was knowing and voluntary, that the district court fully complied with the Fed. accepting his plea. R. Crim. P. 11 requirements when Glover has not demonstrated on this record that he advanced a fair and just reason for withdrawing the plea warranting a hearing or withdrawal of the plea. Thus, the district court did not abuse its discretion. Accordingly, Glover s conviction. facts and materials legal before we affirm Bivens s sentence and affirm We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 7

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