US v. Tony Bowen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00020-JAB-1. Copies to all parties and the district court. [999658068]. [15-4156]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4156

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONY CURTIS BOWEN,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00020-JAB-1)

Submitted:

September 9, 2015

Decided:

September 11, 2015

Before SHEDD, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sharon Leigh Smith, UNTI & SMITH, Raleigh, North Carolina, for
Appellant.
Sandra
Jane
Hairston,
Assistant
United
States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tony Curtis Bowen pled guilty to distributing cocaine base
and possessing a firearm by a convicted felon.
51-month sentence.
386

U.S.

738

He received a

Counsel has filed an Anders v. California,

(1967)

brief,

certifying

that

there

are

no

meritorious issues, but questioning whether the district court
abused its discretion in denying Bowen’s motion to withdraw his
guilty plea.

Finding no error, we affirm.

“A defendant has no absolute right to withdraw a guilty
plea.”
2003)

United States v. Bowman, 348 F.3d 408, 413 (4th Cir.
(internal

quotation

marks

omitted).

Rather,

once

the

district court has accepted a guilty plea, it is within the
court’s

discretion

whether

to

grant

a

motion

to

withdraw

it

based on the defendant’s showing of a “fair and just reason.”
Fed. R. Crim. P. 11(d)(2)(B); United States v. Battle, 499 F.3d
315, 319 (4th Cir. 2007).
defendant

to

withdraw

a

When considering whether to allow a
guilty

plea,

the

trial

court

consider six factors:
(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.

2

must

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United

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States

v.

Moore,

(citations omitted).
be

considered,

important

F.2d

245,

248

(4th

Cir.

1991)

Although all of the Moore factors should

the

factors

931

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first,

in

second,

making

the

allow withdrawal of the plea.

and

fourth

are

determination

of

the

most

whether

to

United States v. Sparks, 67 F.3d

1145, 1154 (4th Cir. 1995).
We

have

reviewed

the

record

on

appeal

and

the

parties’

arguments, and we conclude that the district court did not err
in determining that Bowen’s plea was knowingly and voluntarily
entered, that he had close assistance of competent counsel, and
that he failed to make a credible showing of legal innocence.
We conclude that the district court properly weighed the Moore
factors
motion

and
to

did

not

withdraw

abuse
his

its

guilty

discretion
plea.

in

See

denying
United

Bowen’s

States v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (reviewing Moore
factors

and

applying

abuse

of

discretion

standard).

Accordingly, we affirm the district court’s denial of the motion
to withdraw the plea.
In accordance with Anders, we have reviewed Bowen’s pro se
claims and the entire record in this case and have found no
meritorious
conviction

issues
and

for

appeal.

sentence.

This

We

therefore

court

requires

affirm

Bowen’s

that

counsel

inform Bowen, in writing, of the right to petition the Supreme
Court

of

the

United

States

for
3

further

review.

If

Bowen

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requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.

Counsel’s

motion must state that a copy thereof was served on Bowen.
We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

4