U.S. v. Smith, 92-5651
| Decision Date | 02 March 1993 |
| Docket Number | No. 92-5651,92-5651 |
| Citation | 1 F.3d 1235 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. William Vernon SMITH, Defendant-Appellant. . Submitted: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern.
Charles C. Henderson, for Appellant.
Margaret Person Currin, United States Attorney, David P. Folmar, Jr., Assistant United States Attorney, for Appellee.
Before PHILLIPS and WILKINSON, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
William Vernon Smith appeals from his conviction and sentence pursuant to a guilty plea for conspiracy to import controlled substances in violation of 21 U.S.C. Secs. 952 and 960(a)(1) (1988). Because we find that Smith waived his right to appeal his sentence in his plea agreement and because the district court did not abuse its discretion in denying his motion to withdraw his guilty plea, we affirm.
Smith entered into a plea agreement in which he agreed to enter a guilty plea to conspiracy to import marijuana; the government agreed to dismiss the other charges against Smith. In an addendum to the agreement, the government stipulated:
that it is unable to establish by independent evidence (i.e., from non-hearsay sources) any of the allegations set forth in Count One (conspiracy) of this Indictment other than the allegations regarding the attempted importation of one hundred and ninety-seven pounds of marijuana seized from the Defendant ...
The agreement also contained provisions in which Smith waived his right to appeal "whatever sentence is imposed, including any issues that relate to the establishment of the Guideline range" and which alerted him that "the Court is not bound by any sentence recommendation or agreement as to Guideline application."
The district court conducted a hearing pursuant to Fed. R. Crim. P. 11 in which it determined that Smith's guilty plea was freely and voluntarily entered and that he understood the nature of the charges against him and the maximum and minimum punishments. The court and the parties discussed the quantity issue at length during this hearing. The court repeatedly informed Smith that the amount of drugs involved for purposes of determining his relevant conduct could be more or less than the stipulated amount. Smith stated that his intent was to plead guilty only to 197 pounds of marijuana found on his boat, but elected to plead guilty under the terms described by the court.
The probation officer found that Smith was responsible for 2430 kilograms of marijuana as relevant conduct. Smith then filed a motion to withdraw his guilty plea because he was held accountable for a quantity of marijuana greater than the amount to which he stipulated. The court denied the motion at Smith's sentencing hearing.
Smith asserts that the district court erred when it denied his motion to withdraw his guilty plea because his plea was involuntary and because the government breached his plea agreement. Smith asserts that the government violated the plea agreement when it provided the probation officer who prepared Smith's pre-sentence report with evidence that Smith participated in transactions involving more than 197 pounds of marijuana.
Withdrawal of guilty pleas is governed by Fed. R. Crim. P. 32(d). Under the rule, the defendant has the burden of showing a "fair and just" reason for withdrawal, even if the government has not shown that it would be prejudiced by the withdrawal. United States v. Moore, 931 F.2d 245 (4th Cir.), cert. denied, 60 U.S.L.W. 3261 (1991). Factors relevant to showing a fair and just reason are:
(1) Credible evidence that the plea was not knowing and voluntary;
(2) A credible assertion of innocence;
(3) Delay between entry of the plea and the motion to withdraw;
(4) Close assistance of competent counsel;
(5) Prejudice to the government from withdrawal; and
(6) Inconvenience to the Court and waste of judicial resources.
Moore, 931 F.2d at 248. These factors are balancing factors only; prejudice to the government should not be considered until the defendant has successfully established that a fair and just reason exists for withdrawing the plea. United States v. Haley, 784 F.2d 1218, 1219 (4th Cir. 1986). The action of the district court on a motion to withdraw a plea is reviewed for an abuse of discretion. United States v. Pitino, 887 F.2d 42, 46 (4th Cir. 1989). The district court's factual findings in support of its decision to...
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...would be prejudiced by the withdrawal. United States v. Haley, 784 F.2d at 1219; see also United States v. Smith, 1 F.3d 1235, No. 92-5651, 1993 WL 290897, at *1-2 (4th Cir. (N.C.) July 29, 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1078, 127 L.Ed.2d 395 (1994) (citing United States v. Mo......
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