Unpublished
Unpublished
No. 09-4052
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:03-cr-00050-RLV-CH-1)
Submitted:
Decided:
PER CURIAM:
Jamade Barson Jones appeals from his conviction and
162-month
sentence
entered
pursuant
to
his
guilty
plea
to
On
appeal,
erred
by
for
his
continuance,
and
Jones
(1) failing
sentence,
asserts
to
(2)
(3) denying
that
provide
denying
his
motion
the
district
individualized
his
motion
to
withdraw
for
his
court
reasoning
a
guilty
plea.
The
We affirm.
I.
It is well-settled that a defendant may waive in a
valid plea agreement the right of appeal under 18 U.S.C. 3742
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
[2006].
1990).
v.
Blick,
408
F.3d
162,
168
(4th
Cir.
United
2005).
In
to
waiver.
be
appealed
falls
within
the
scope
of
the
appeal
Cir. 2007).
colloquy
and
the
record
indicates
that
the
defendant
that
contemplated
therefore
only
narrow
class
the
defendant
could
when
the
agreement
are
excluded
plea
from
the
of
not
claims
have
was
scope
involves
reasonably
executed,
of
the
and
waiver.
excess
of
the
constitutionally
statutory
maximum
impermissible
penalty
factor
such
or
as
based
race,
on
United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), fall within
the category of claims excluded from an appellate waiver.
Here,
the
record
shows
that
the
district
court
intelligently
Accordingly,
we
waived
his
right
find
that
Jones
to
appeal
his
knowingly
and
voluntarily
agreed
to
the
appellate
waiver;
therefore,
the
disagree
as
that
to
whether
Jones
claim
the
district
court
As discussed
the
(which
district
was
Amendment
filed
right
court,
after
to
in
his
denying
guilty
counsel
of
his
motion
plea),
his
own
Jones asserts
to
violated
choice.
continue
his
See
Sixth
United
within
the
scope
of
Jones
appellate
waiver
and
will,
II.
The
district
courts
denial
of
continuance
is
Id.
In addition,
trial
in
court
abused
its
discretion
denying
defendants
lack
of
communication
preventing
an
adequate
defense.
United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).
These factors are weighed against the district courts interest
in the orderly administration of justice.
addition,
district
court
has
wide
Id. at 157.
latitude
in
In
limiting
at 152.
Jones motion was untimely filed on the morning of
sentencing.
for
reasons
Jones
for
questioning
his
the
motion,
allowing
dissatisfaction
attorney
as
to
5
why
him
to
with
explain
his
certain
fully
attorney
motions
were
the
and
not
filed.
course
of
action
to
take.
Moreover,
Jones
sister
sentencing
was
imminent.
Because
the
district
courts
ruling was not arbitrary, the court did not abuse its discretion
in denying Jones motion for a continuance.
III.
We review the district courts denial of a motion to
withdraw
States v.
guilty
Dyess,
plea
478
for
F.3d
abuse
224,
of
237
discretion.
(4th
Cir.
United
2007).
The
the
withdrawal
11(d)(2)(B).
essentially
(4th
his
guilty
plea.
Fed.
R.
Crim.
P.
proceeding . . . .
1394
of
Cir.
the
fairness
of
the
Rule
11
1992).
Courts
consider
six
factors
in
appropriately
conducted
strong
Rule
raise[s]
presumption
binding.
11
that
proceeding,
the
plea
is
however,
final
and
at
As
the
such,
voluntary.
he
time
asserts
However,
he
that
of
his
presents
plea
no
his
was
not
evidence
plea.
knowing
aside
from
and
his
In light of the
that
involuntary.
his
plea
Ubakanma,
was
215
not
F.3d
at
knowing
424.
or
otherwise
Moreover,
Jones
1299
evidence
to
(4th
the
Cir.
1992)
contrary,
(Absent
a
clear
defendant
and
is
convincing
bound
by
the
years
after
he
entered
his
guilty
plea.
See
United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991) (finding that
six-week delay militated against withdrawal of plea).
Jones
nor
incompetent.
does
the
Finally,
record
reveal,
allowing
Jones
that
to
his
attorney
withdraw
his
was
plea
We therefore
conclude that the district court did not abuse its discretion in
denying Jones motion to withdraw his guilty plea.
Jones also asserts that he was entitled to withdraw
his guilty plea because, at the time of his motion, the plea had
not yet been accepted by the district court.
8
before
the
court
accepts
it).
Specifically,
Jones
court
did
assertion
that
his
not
conduct
attorney
the
had
lied
required
to
him,
review
the
of
his
magistrate
judge
following
an
undisputedly
complete
Rule
11
as
the
district
court
exercises
de
novo
review
of
the
Osborne, 345 F.3d 281, 289-90 (4th Cir. 2003) (holding that,
absent
request
or
objection,
district
court
is
not
bound
to
withdrawal
standard of review.
remains
subject
the
clearly
erroneous
Id.
allegations
is
unsupported
by
the
record.
As
discussed
withdrawal
factors.
raised
by
Jones
and
discussed
the
relevant
only
argument
in
support
of
his
assertion
Thus, as
that
the
are
no
grounds
on
which
to
disregard
the
magistrate
filed,
believes
but
counsel
that
such
petition
would
be
11