US v. Yorby Mendoza, No. 10-4667 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4667 UNITED STATES OF AMERICA, Plaintiff Appellee, v. YORBY MENDOZA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00014-RLV-DSC-4) Submitted: June 17, 2011 Decided: July 8, 2011 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Matthew R. Segal, Assistant Federal Defender, Asheville, North Carolina; Steven George Slawinski, Assistant Federal Defender, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Yorby Mendoza pled guilty to one count of conspiracy to possess with intent to distribute violation of 21 U.S.C. ยงยง heroin and 841(a), 846 (2006). cocaine, Following his Rule 11 hearing, Mendoza fled the United States. Over three years later, he was arrested in Colombia and extradited. his return, the district court held a in sentencing which Mendoza sought to withdraw his guilty plea. Upon hearing at The district court denied Mendoza s motion and sentenced him to 159 months in prison. Mendoza appeals. We affirm. On appeal, Mendoza first contends that the district court erred in denying his motion to withdraw his guilty plea. The district court s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). United States v. [A] defendant does not have an absolute right to withdraw a guilty plea, even before sentencing. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Instead, he must show that a fair and just reason his supports request to (internal quotation marks omitted). withdraw his plea. Id. [A] fair and just reason . . . 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). 2 In determining whether Mendoza has carried his burden, the court Although weight, considers all the the key six factors in factors. in Moore, Moore determining must whether 931 be a F.2d given motion at 248. appropriate to withdraw should be granted is whether the Rule 11 hearing was properly conducted. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). This court closely scrutinizes the Rule 11 colloquy and attaches a strong presumption that the plea is final and binding if the Rule 11 proceeding was adequate. F.2d at 1394. Lambey, 974 Our review of the record leads us to conclude that the district court did not abuse its discretion in denying Mendoza s motion to withdraw his guilty plea. Mendoza also claims that the district court erred in not allowing him to withdraw his guilty plea pursuant to Fed. R. Crim. P. 11(d)(1). his plea Specifically, Mendoza asserts that, because proceeding was conducted by a magistrate judge and Mendoza moved to withdraw his plea in the district court before the district court accepted the plea, his plea had not yet been accepted and he was reason or no reason. entitled to withdraw his plea for any Mendoza did not present this argument to the district court and therefore, this claim is reviewed for plain error. United States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008). Under this standard, this court may correct an alleged error only if [t]here [was] an error that is plain and 3 United States v. Olano, 507 that affect[s] substantial rights. U.S. 725, 732 (1993) (internal quotation marks omitted). In Benton, this court found that where a defendant has consented to having his plea accepted by a magistrate judge, he may not later Benton, 523 F.3d seek to withdraw his plea pursuant to Rule 11. at 433. Because we conclude that Mendoza s plea was valid, his consent to enter that plea before the magistrate judge was likewise valid, and forecloses this claim. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4

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