US v. Scottie Martinez
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cr-00122-JBF-TEM-1 Copies to all parties and the district court/agency. [998722354].. [11-4104]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4104
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SCOTTIE LEE MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Jerome B. Friedman, Senior
District Judge. (2:10-cr-00122-JBF-TEM-1)
Submitted:
October 20, 2011
Decided:
November 15, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Elizabeth M. Yusi, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Scottie
Lee
Martinez
appeals
his
conviction
and
sentence of 960 months’ imprisonment for production of child
pornography, in violation of 18 U.S.C. § 2251(a), (e) (2006),
and
18
U.S.C.
§ 2256
(1),
(2)
(2006),
and
abusive
sexual
contact, in violation of 18 U.S.C. § 2244(a)(1), (c) (2006).
His sole contention on appeal is that the district court erred
in denying his motion to withdraw his guilty plea.
For the
reasons that follow, we affirm. *
This Court reviews for abuse of discretion a district
court’s denial of a motion to withdraw a guilty plea.
States
v.
Dyess,
478
F.3d
224,
237
(4th
Cir.
2007).
United
The
defendant bears the burden of showing a “fair and just reason”
*
In its brief, the Government urges this Court to dismiss
Martinez’s appeal based on the appellate waiver contained in his
plea agreement. We have reviewed the record and conclude that,
while
the
district
court
carefully
questioned
Martinez
concerning his waiver of his right to appeal his sentence, no
mention was made that the terms of Martinez’s appellate waiver
also barred a challenge to his conviction. See United States v.
Wood, 378 F.3d 342, 349 (4th Cir 2004) (discussing a criminal
defendant’s reliance “on the district court’s characterization
of the material terms [of the plea agreement] disclosed during
the [Rule 11] hearing”); United States v. Wessells, 936 F.2d
165, 167-68 (4th Cir. 1991) (noting that if the district court
fully questions a defendant regarding the waiver during the
Federal Rule of Criminal Procedure 11 plea colloquy, the waiver
is generally both valid and enforceable). We therefore decline
the Government’s invitation to dismiss Martinez’s appeal, and
address Martinez’s claim on the merits.
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for withdrawing his guilty plea.
Page: 3 of 4
Fed. R. Crim. P. 11(d)(2)(B);
United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007).
“[A]
‘fair
and
challenges
.
just’
.
.
reason
the
.
fairness
.
of
.
is
the
one
that
essentially
Rule
11
proceeding.”
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
“[R]eversal
is
warranted
only
if
the
plea
proceedings
were
marred by a fundamental defect that inherently resulted in a
complete miscarriage of justice, or in omissions inconsistent
with rudimentary demands of fair procedure.”
Ubakanma,
215
F.3d
421,
425
(4th
Cir.
United States v.
2000).
In
deciding
whether to permit withdrawal, a district court should consider:
(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 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.
Although all the factors in Ubakanma should be given
appropriate
weight,
the
key
factor
in
determining
whether
a
motion to withdraw should be granted is whether the Rule 11
hearing was properly conducted.
F.3d 408, 414 (4th Cir. 2003).
United States v. Bowman, 348
This Court closely scrutinizes
the Rule 11 colloquy and attaches a strong presumption that the
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plea is final and binding if the Rule 11 proceeding is adequate.
Lambey, 974 F.2d at 1394.
We
have
reviewed
the
Ubakanma
factors
that Martinez has not carried his burden.
and
conclude
Although Martinez
made a bare assertion of legal innocence, we have thoroughly
reviewed the record and find no error in the district court’s
determination
credence.
that
Martinez’s
claim
was
not
entitled
to
Moreover, Martinez has not alleged any defect in his
Rule 11 proceeding; there was a significant delay between the
entry of the plea and the motion to withdraw the plea; and
Martinez had close assistance of counsel.
While we acknowledge
the district court’s finding that neither the Government nor the
courts would be overly burdened by allowing Martinez to withdraw
his guilty plea and proceed to a trial, we agree that, given the
soundness of Martinez’s guilty plea and the lack of credible
evidence
supporting
his
assertion
of
legal
innocence,
the
Ubakanma factors, taken as a whole, support the district court’s
rejection of Martinez’s motion to withdraw.
Accordingly, we affirm the judgment of the district
court.
legal
before
We dispense with oral argument because the facts and
conclusions
the
Court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
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