US v. Handy

Filing 920071010

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-4548

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DONALD RAYFIELD HANDY, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:05-cr-00279-RDB)

Submitted:

September 17, 2007

Decided:

October 10, 2007

Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew Jay Graham, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Richard C. Kay, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Donald Rayfield Handy pled guilty to conspiracy to

distribute and to possess with intent to distribute cocaine base and was sentenced to 210 months in prison. claiming withdraw that his the district plea court and should he have He now appeals, allowed him to

guilty

that

received

ineffective

assistance of counsel.

We affirm. See United Withdrawal

Our review is for abuse of discretion. States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). of a guilty plea is not a matter of right. Bowman, 348 F.3d 408, 413 (4th Cir. 2003).

United States v.

The defendant bears the

burden of showing a "fair and just reason" for the withdrawal of his plea. Fed. R. Crim. P. 11(d)(2)(B). "[A] `fair and just'

reason . . . is one that essentially challenges . . . the fairness of the Rule 11 proceeding." 1389, 1394 (4th Cir. 1992) United States v. Lambey, 974 F.2d (en banc). "[A]n appropriately

conducted Rule 11 proceeding . . . raise[s] a strong presumption that the plea is final and binding." Courts consider six Id. in determining whether

factors

withdrawal of a guilty plea is proper: (1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether - 2 -

withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources. Ubakanma, 215 F.3d at 424 (citing United States v. Moore, 931 F.2d 245, 248) (4th Cir. 1991) (footnote omitted)). With these factors in mind, we have reviewed the record and the parties' briefs on appeal. We conclude that Handy did not

demonstrate a "fair and just" reason for withdrawing his guilty plea, and that the district court did not abuse its discretion in denying the motion. Further, ineffective assistance of counsel does not

appear on the face of the record.

We accordingly decline to See United

address Handy's claim of ineffective assistance.

States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). We therefore affirm Handy's conviction. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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