United States v. Burton, 4th Cir. (2009)
United States v. Burton, 4th Cir. (2009)
United States v. Burton, 4th Cir. (2009)
No. 07-4254
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Alexander Williams, Jr., District
Judge. (8:04-cr-00559-AW)
Submitted:
NIEMEYER,
Decided:
Circuit
November 6, 2009
Judges,
and
HAMILTON,
PER CURIAM:
Stevie
Burton
appeals
the
district
courts
judgment
the
motion;
the
district
court
plainly
erred
under
U.S.
was
not
sentencing
entitled
for
to
acceptance
a
of
reduction
in
offense
responsibility;
the
level
at
Government
case
should
be
remanded
for
resentencing
in
view
of
We affirm.
United States
A defendant
court considers:
evidence that his plea was not knowing or not voluntary; (2)
whether
he
has
credibly
asserted
his
legal
innocence;
(3)
whether there has been a delay between the entering of the plea
and filing of the motion; (4) whether the defendant has had the
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.
Id.
The
United States v.
have
reviewed
the
record
and
conclude
that
the
plea was not knowingly entered into because he thought the plea
agreement he signed was the same as a previous version and he
was unaware of its provisions regarding forfeiture.
his
guilty
plea
colloquy,
the
district
court
However, in
specifically
found
Burton
failed
to
present
sufficient
evidence
to
his
plea
was
not
knowing
and
voluntary,
and
the
On appeal,
Burton does not allege any error in the district courts plea
colloquy but reasserts his claim that his plea was not knowingly
entered into; contends his plea agreement was void based on his
own violation of the agreement; and complains that the district
court relied on the Moore factors in denying his motion.
We
six factors under Moore that the district court had to consider,
Burton asserted his focus in bringing the motion was not on
strongly whether he admitted any involvement in the offense but
whether
he
knowingly
understood
4
and
entered
his
plea.
When
Burtons
attorney
proposed
having
him
testify,
the
district
be.
testify.
direct
However,
despite
the
warning,
Burton
decided
to
examination,
the
Government
questioned
him
regarding
the
indictment.
The
district
court
overruled
Burtons
we
find
no
abuse
of
discretion
in
the
district
courts
See Brown v.
not
holding
an
evidentiary
hearing
under
USSG
6A1.3
to
does not apply in this case because there was no departure from
the applicable guideline range.
to
his
motion
to
withdraw
his
guilty
plea
and
the
Moreover,
appeal,
Burton
contends
the
district
court
should
have
However, the
permitted
to
any
adjustment
for
acceptance
of
preserve this claim in the district court but raises it for the
See United
v.
Rodriguez,
433
F.3d
411,
414-16
(4th
Cir.
2006).
We find
On appeal, he argues
to
depart
from
the
guideline
range
based
on
the
nonspeculative
basis
in
the
record
to
indicate
that
the
See United
We
We
dispense
with
oral
argument
because
the
facts
and
legal
AFFIRMED