US v. Phillip Jone

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for leave to file [999658116-2] Originating case number: 1:14-cr-00012-CCE-1 Copies to all parties and the district court/agency. [999671024].. [14-4756]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4756

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PHILLIP JAMAL JONES,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00012-CCE-1)

Submitted:

May 28, 2015

Decided:

October 2, 2015

Before MOTZ, GREGORY, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, LAW OFFICE OF GEORGE E. CLUMP, III,
Rockingham, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Clifton T. Barrett, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Phillip Jamal Jones pled guilty to: carrying and using, by
brandishing, a firearm during and in relation to a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii) (2012) (Count Two); and
bank robbery, 18 U.S.C. § 2113(a) (2012) (Count Three).

He was

sentenced to 108 months in prison on each count; the sentences
run consecutively.

Jones appeals, claiming that the district

court erred when it denied his motion to withdraw his guilty
plea to Count Two and that his sentence is unreasonable.

We

affirm.
I
Jones’ motion to withdraw his guilty plea to Count Two was
based on his claims that he was not guilty of the offense and
was depressed and not thinking clearly at the time he entered
his plea.
discretion

We conclude that the district court did not abuse its
in

denying

the

motion.

See

United

States

v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (stating standard of
review).
After a district court accepts a guilty plea, but before
sentencing, a defendant may withdraw his plea if he “can show a
fair and just reason for requesting the withdrawal.”
Crim. P. 11(d)(2)(B).

Fed. R.

The Rule does not afford a defendant an

absolute right to withdraw a guilty plea.

United States v.

Bowman, 348 F.3d 408, 413 (4th Cir. 2003); United States v.
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Moore,

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931

F.2d

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245,

248

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(4th

Cir.

1991).

The

burden

of

establishing “a fair and just reason” for plea withdrawal lies
with the defendant.

Ubakanma, 215 F.3d at 424.

reason

challenges

“essentially

Crim. P. 11 proceeding.

the

fairness”

A fair and just
of

the

Fed.

R.

Id. (internal quotation marks omitted).

We have developed a nonexclusive list of factors for the
district court to consider when deciding if the defendant has
met his burden:
(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.
Moore, 931 F.2d at 248.

“The most important consideration in

resolving a motion to withdraw . . . is an evaluation of the
Rule 11 colloquy. . . .

Accordingly, a properly conducted Rule

11 . . . colloquy leaves a defendant with a very limited basis
upon which to have his plea withdrawn.”

Bowman, 348 F.3d at

414.

“If an appropriately conducted Rule 11 proceeding is to

serve

a

system

meaningful
can

presumption

function,

rely,

it

must

be

that

the

plea

on

is

which

the

recognized
final

and

to

criminal
raise

binding.”

a

justice
strong
United

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).

3

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With

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these

transcript

of

standards
the

in

properly

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mind,

and

conducted

having
Rule

reviewed

11

the

hearing,

we

conclude that the district court did not abuse its discretion in
applying the above factors and finding that Jones failed to show
a fair and just reason to withdraw his plea.

Further, because

Jones did not make this showing, no evidentiary hearing on the
motion was required.

See Moore, 931 F.2d at 248.
II

We

now

address

unreasonable.

Jones’

argument

that

his

sentence

is

At sentencing, the district court first stated

that it would depart from the seven-year Guidelines sentence on
Count Two pursuant to U.S. Sentencing Guidelines Manual § 5K2.2
(2013) based on significant physical injury to a victim.

The

court said that it would also depart from the Guidelines range
of 63-78 months on Count Three because Jones’ criminal history
score did not adequately reflect the seriousness of his criminal
history and the risk of recidivism.
The

court

added

that,

even

without

the

upward variance on both counts was appropriate.
that

several

variance.

18

Among

U.S.C.
other

§ 3553(a)
things,

(2012)

the

departures,

The court found

factors

court

an

noted

warranted
the

a

violent

assault on the victim of the firearm offense, Jones’ extensive
criminal

record,

the

need

to

protect

the

public,

and

Jones’

inability to conform his behavior to society’s expectations.
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We

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review

“any

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sentence,

within

or

outside

of

the

Guidelines range, a result of a departure or of a variance,
. . .

for

reasonableness

standard.”

to

an

abuse

of

discretion

United States v. Diosdado-Star, 630 F.3d 359, 365

(4th Cir. 2011).
more

pursuant

“When . . . a district court offers two or

independent

rationales

for

its

deviation,

an

appellate

court cannot hold the sentence unreasonable if the appellate
court finds fault with just one of these rationales.”

United

State

2008).

v.

Evans,

526

F.3d

155,

165

(4th

Cir.

Consequently, “the method of deviation from the Guidelines range
— whether by a departure or by varying — is irrelevant so long
as

at

least

one

rationale

is

justified

and

reasonable.”

Diosdado-Star, 630 F.3d at 365-66.
Under
district

these
court's

principles,
stated

if

we

rationale

are
for

satisfied
applying

a

that

the

variance

sentence is reasonable and justified, we need not address Jones’
claim

that

the

Guidelines range.

district

court

erroneously

departed

from

the

We find that the district court committed no

procedural or substantive error in its decision to vary upward.
We note especially that the court sufficiently explained its
reasons for both its decision to vary and the extent of the
variance.

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III
We

accordingly

affirm.

We

dispense

with

oral

argument

because the facts and legal arguments are adequately presented
in the materials before the court and argument would not aid the
decisional process.

The motion for leave to file a pro se

supplemental brief is denied.
AFFIRMED

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