US v. Charles Hargrove, Jr., No. 12-4626 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4626 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES HARGROVE, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:11-cr-00194-D-3) Submitted: March 15, 2013 Decided: March 29, 2013 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert L. Carolina, Attorney, Assistant Appellee. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North for Appellant. Thomas G. Walker, United States Jennifer P. May-Parker, Yvonne V. Watford-McKinney, United States Attorneys, Raleigh, North Carolina, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles Hargrove, Jr., appeals from his conviction of conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. ยง 846 (2006). His sole contention on appeal is that the district court erred in denying his motion to withdraw his guilty plea. We affirm. We review a district court s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). In order to withdraw a guilty plea before sentencing, a defendant must show that a fair and just reason supports his request. Crim. P. 11(d)(2)(B). Fed. R. [A] fair and just reason . . . is one that essentially challenges . . . the fairness of the Rule 11 proceeding. United States (4th Cir. 1992) (en banc). v. Lambey, 974 F.2d 1389, 1394 The defendant bears the heavy burden of demonstrating the existence of such a reason. United States v. Thompson-Riviere, 561 F.3d 345, 348 (4th Cir. 2009). In burden, a determining district whether court must a defendant consider the has six met this factors articulated in United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). We have reviewed the record in this case and, after carefully considering the factors described in Moore, conclude that the district court did not abuse its discretion in denying Hargrove s motion to withdraw his plea. 2 When conducting Hargrove s plea colloquy, the magistrate judge fully complied with the mandates of Fed. R. Crim. P. 11, and nothing in the record indicates that Hargrove s plea was unknowing or involuntary. during his appointed Rule 11 hearing counsel s that Further, Hargrove averred he was representation. satisfied Such with statements his are presumed true, and Hargrove has not produced any evidence to support his bald assertion that his counsel s assistance was deficient. Blackledge v. Allison, 431 U.S. 63, 74 (1977); see Fields v. Attorney Gen., 956 F.2d 1290, 1299 (4th Cir. 1992) ( Absent clear and convincing evidence to the contrary, a defendant is bound by the representations he makes under oath during a plea colloquy. ). Additionally, Hargrove has not asserted his innocence. Moreover, Hargrove did not seek to withdraw his plea until roughly seven months after his Rule 11 hearing and two months after he delay. was appointed replacement Moore, 931 F.2d at 248. counsel, a considerable Because Hargrove has also failed to show that his counsel s conduct was improper, we find that the district court correctly concluded that consideration of the Hargrove first to four Moore withdraw his factors plea. counseled against Accordingly, allowing contrary to Hargrove s suggestion, the district court was not required to explain with greater specificity the basis for its determination 3 that allowing withdrawal of Hargrove s plea would also prejudice the Government and waste judicial resources. See United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995) (where a district court finds that the first four Moore factors weigh against allowing withdrawal of a plea, the court may reasonably refrain from trying to ascertain just how much withdrawal of the plea would prejudice the government and inconvenience the court ). We therefore affirm the district court s judgment. dispense with conclusions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4