US v. Jeremy Mosley

Filing 920090709

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4689 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEREMY PERNELL MOSLEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:07-cr-00302-LMB-1) Submitted: June 22, 2009 Decided: July 9, 2009 Before MICHAEL, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Frank Salvato, LAW OFFICES OF FRANK SALVATO, Alexandria, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Daniel J. Grooms, Marla B. Tusk, Assistant United States Attorneys, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jeremy Pernell Mosley pled guilty to one count of conspiracy to distribute fifty grams or more of crack cocaine, and one or count more of of possession crack with intent in to distribute of 21 fifty U.S.C. grams cocaine, violation 841(a)(1), 846 (2006). to 168 months of The district court sentenced Mosley and he timely appealed. On imprisonment, appeal, Mosley argues that the district court erred in denying his motion to withdraw his guilty plea, his motion to dismiss the indictment for lack of jurisdiction, and his motion to transfer the case. We affirm. A district court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United The just States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). defendant has the burden of demonstrating "a fair and reason" for withdrawal. F.3d at 424. Fed. R. Crim. P. 32(e); Ubakanma, 215 A "fair and just reason" is one that challenges the fairness of the guilty plea colloquy conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure. States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). In determining whether the trial court abused its United discretion in denying a motion to withdraw a guilty plea, six factors are considered: 2 (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether 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. United States all v. the Moore, factors 931 in F.2d Moore 245, must 248 be (4th given Cir. 1991). Although appropriate weight, the key to determining whether to grant a motion to withdraw a guilty plea is whether the Rule 11 hearing was properly conducted. (4th Cir. 2004). colloquy. An United States v. Faris, 388 F.3d 452, 456 This court closely scrutinizes the Rule 11 Rule 11 proceeding creates a strong adequate presumption that the guilty plea is binding. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). United States v. Our review of the record leads us to conclude that the district court properly applied the Moore factors and did not abuse its discretion in denying Mosley's motion to withdraw his guilty plea. Mosley also argues that the district court erred in denying his motion to dismiss argument the is indictment squarely for lack of by jurisdiction. Mosley's foreclosed Circuit precedent. 12 (4th Cir. 1995). United States v. Leshuk, 65 F.3d 1105, 1111- 3 Mosley next argues that the district court erred in denying his motion to transfer his case to the Western District of Virginia because venue was improper in the Eastern District. He asserts that the conspiracy charged in Count One of the indictment occurred in the Western District. The venue statute generally applicable to criminal cases provides that "[e]xcept as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense 3237(a) was begun, continued, A or completed." may be 18 U.S.C. in any (2006). conspiracy prosecuted district in which an act in furtherance of the conspiracy was committed. Cir. 1995). In this case, the AUSA stated in the factual basis, without contradiction by Mosley, that several acts in United States v. Al-Talib, 55 F.3d 923, 928-29 (4th furtherance of the conspiracy occurred in the Eastern District of Virginia. venue was The district court did not err in concluding that in can the be Eastern District. as To the extent the the proper argument court Mosley's district construed asserting the case that for should have transferred convenience of the parties under Fed. R. Crim. P. 21(b), we find 4 the district court did not abuse its discretion. See United States v. Smith, 452 F.3d 323, 336 n.1 (4th Cir. 2006). Finally, assistance probative of as Mosley asserts that of a claim "this of ineffective issue is counsel, to the stating factual plea withdrawal the guilty factors." Claims of ineffective assistance of counsel are generally not cognizable on direct appeal. F.3d 290, 295 (4th Cir. 1997). See United States v. King, 119 Rather, to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C.A. 2255 (West Supp. 2009) motion. See id.; United An exception ineffective States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). exists when the record conclusively establishes assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Our review reveals that the counsel performed in a Cir. 1999); King, 119 F.3d at 295. record does not demonstrate that deficient manner. We therefore decline to consider this claim. we affirm Mosley's the convictions. facts and We legal Accordingly, dispense with oral argument because contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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