US v. Jeremy Mosley

Filing 920090709

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

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(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-

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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

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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

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