                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5068



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KARL KEVIN HILL,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:04-cr-00030-REM-1)


Submitted:   May 30, 2007                 Decided:   August 16, 2007


Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Marjorie Anne McDiarmid, WEST VIRGINIA UNIVERSITY, Morgantown, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Elkins, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Karl Kevin Hill pled guilty to conspiracy to distribute

methamphetamine and marijuana.        He was sentenced to the statutory

mandatory     minimum   sentence      of   ten     years.         21     U.S.C.A.

§ 841(b)(1)(B) (West Supp. 2006).          He appeals his conviction and

sentence, and we affirm.



                                      I.

            On September 22, 2004, police officers went to Karl Kevin

Hill’s home in search of a fugitive.         The officers knew that Hill

was a convicted felon.       Sergeant Cunningham knocked on the front

door and announced his presence.       When no one responded, he pushed

the door open and stepped into the residence.                    As he stepped

inside, he was met by Hill, who stated that the fugitive had left

and refused permission to search the house.                 Cunningham asked

another   individual    in   the   house   what    his    name    was,      and   he

identified himself.      When Cunningham stated that he too was a

fugitive,   the   individual   fled    toward     the    back    of   the   house.

Cunningham pursued, and during this brief pursuit, he noticed a

rifle in plain view.

            While other officers detained the fugitive, Cunningham

arrested Hill for being a felon in possession of a firearm.

Meanwhile, two officers who had walked behind the house smelled the

“chokingly strong” odor of a methamphetamine laboratory coming from


                                   - 2 -
a trailer behind the residence.            They asked Hill for permission to

search his trailer, and Hill said that the trailer did not belong

to him, and instead was owned by his sister.                        Hill told the

officers where his sister lived, and they traveled to her home to

seek permission to search the trailer.              Hill’s sister gave written

consent, stating that she was the owner of the trailer, and the

police officers found an operational methamphetamine laboratory

inside.

             Hill moved to suppress items seized during the search of

his   home   and    of   his    sister’s    trailer.       The     district    court

suppressed the items seized from his home, including the firearm,

finding that Cunningham improperly entered Hill’s home without a

warrant or exigent circumstances.               The court denied the motion to

suppress the evidence found in the trailer, reasoning that Hill had

no Fourth Amendment interest in the trailer because he denied

ownership or control.

             On April 15, 2005, Hill pled guilty to conspiracy to

possess      with    the       intent      to     distribute       marijuana     and

methamphetamine.         Hill was released pending sentencing to permit

him   to   cooperate     with   the     Government    in   hopes    of   earning   a

substantial assistance departure.               However, once on release, Hill

made no attempts to assist the authorities.

             On February 13, 2006, Hill moved to withdraw his guilty

plea, stating that, while in police custody, he had been denied


                                        - 3 -
medical assistance for his serious knee injury.              Because the

Government had informed him that, if he pled guilty, they would not

oppose his motion for bond, Hill pled guilty in order to be

released from prison and seek medical attention.         Thus, he claimed

that his plea was coerced and given under duress.

           Hill   also   moved   to   reconsider   the   ruling   that   the

evidence seized from the trailer was admissible against him.             He

argued that, under the new decision in Georgia v. Randolph, 547

U.S. 103, 126 S. Ct. 1515 (2006), he had standing to challenge the

search and his sister lacked actual and apparent authority to

consent.   The Government responded, objecting to the relitigation

of any matters not affected by Randolph.

           The magistrate judge recommended denying both the motion

to withdraw Hill’s guilty plea and his motion to reconsider.

Regarding the motion to withdraw, the magistrate judge conducted an

analysis of the six-factor test outlined in United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991).          When discussing the first

factor—whether the defendant has offered credible evidence that his

plea was not voluntary—the magistrate judge noted that there was no

mention of Hill’s medical condition, pain therefrom, or lack of

treatment by Hill, his counsel, or any other person present at the

plea hearing.     The magistrate judge also stated as follows:

     The undersigned is suspicious of the fact that Hill had
     the opportunity to call his former counsel, Sean Murphy,
     to testify at the hearing before the undersigned as to
     any knowledge Murphy may have had relative to Hill’s

                                  - 4 -
     current claim that he entered a guilty plea to obtain
     release to get medical treatment and did not do so.
     Instead, Hill asks the undersigned to make a connection
     between his pre-existing medical condition, attempts to
     get treatment while incarcerated and his getting medical
     attention as soon as he was released . . . and his
     present claim that his plea was involuntary. To do so,
     the undersigned would have to engage in rank speculation.


The magistrate judge further noted that Hill did not take the

stand.

          The magistrate judge also addressed another factor —

whether Hill has made a credible assertion of legal innocence — and

considered Hill’s claim that he is legally innocent by virtue of

the application of Randolph, where the Supreme Court held that “a

warrantless search of a shared dwelling for evidence over the

express refusal of consent by a physically present resident cannot

be justified as reasonable as to him on the basis of consent given

to the police by another resident.”           126 S. Ct. at 1526.            The

magistrate   judge   found   that    the    facts    of     Hill’s   case   were

significantly different from the facts in Randolph.             Specifically,

Hill did not refuse consent to search; instead, he claimed that the

trailer was not his and that the police would need to seek consent

from his sister.

          In   addition,     the    magistrate      judge    rejected   Hill’s

contention that his sister lacked “common authority” over the

trailer, sufficient to give consent.         The judge considered Hill’s

express disavowal, as well as his sister’s statements that the


                                    - 5 -
trailer was on her land and that she stored her personal belongings

there.1       The magistrate judge then concluded that Hill’s sister had

common authority to consent to the search and that, therefore, Hill

had failed to credibly assert either his actual or legal innocence.

Thus, the magistrate judge recommended denying Hill’s motion to

withdraw his guilty plea and his motion to reconsider.

               The district court adopted the report and recommendation

and ruled that Hill waived standing to challenge the search and

that Hill had not presented “any real evidence of duress.”              Thus,

the court denied Hill’s motion to withdraw and his motion for

reconsideration.

               Because he had a previous felony drug conviction, Hill

faced     a    mandatory   statutory    minimum   sentence   of   ten   years

imprisonment. See 21 U.S.C. § 841(b)(1)(B) (2000). At sentencing,

Hill challenged the district court’s conclusion that his previous

Virginia conviction for possession and distribution of marijuana

was a felony offense.       The court overruled his objection, and Hill

was sentenced to ten years in prison.2




     1
      Hill’s sister also stated that the trailer was not titled in
anyone’s name and that she had not been over there for over a year.
     2
        Hill’s guideline range was 78-97 months’ imprisonment.

                                       - 6 -
                                        II.

            Hill challenges the denial of his motion to withdraw his

guilty plea on two grounds: first, he asserts that the district

court improperly drew negative inferences from his assertion of

attorney-client privilege and the Fifth Amendment, and second, he

claims that his motion to suppress was wrongly decided, thus

demonstrating his innocence.           Withdrawal of a guilty plea is not a

matter of right.     United States v. Ubakanma, 215 F.3d 421, 424 (4th

Cir. 2000).    The defendant bears the burden of showing a “fair and

just reason” for the withdrawal of his guilty plea.               Fed. R. Crim.

P. 11(d)(2)(B).      “[A] ‘fair and just’ reason . . . is one that

essentially    challenges     .   .    .   the    fairness   of   the   Rule   11

proceeding.”    United States v. Lambey, 974 F.2d 1389, 1394 (4th

Cir.   1992)   (en   banc).       An    appropriately    conducted      Rule   11

proceeding, however raises a strong presumption that the guilty

plea is final and binding.              Id.      We consider six factors in

determining whether to permit the withdrawal of a guilty plea:

       (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.

Moore, 931 F.2d at 248.           The denial of a motion to withdraw a

guilty plea is reviewed for an abuse of discretion.               Ubakanma, 215


                                       - 7 -
F.3d at 424.           A defendant must show prejudice for a district

court’s ruling to constitute an abuse of discretion.                       United

States v. West, 877 F.2d 281, 288 (4th Cir. 1989).

              The only evidence presented by Hill in support of his

motion to withdraw was medical evidence showing that he had a

serious knee injury, that he was not given immediate treatment in

jail, and that once he was released, he immediately sought and was

given treatment. Hill presented absolutely no evidence tying these

facts    to     his    guilty   plea.      While    he   was   released    pending

sentencing, the reason given on the record at his plea colloquy was

that Hill was being given a chance to cooperate in hopes of

securing a departure based on his substantial assistance. Further,

at his plea hearing, Hill testified that he had no impairment

preventing him from fully participating in the hearing, that he had

not received any promises or inducement except those contained in

the plea and cooperation agreements, and that his attorney had not

left anything undone that he thought should be done on his behalf.

Moreover, the record reflects that, while in prison prior to his

plea,    Hill    sought    outside      medical    treatment   and   was   granted

permission to see a doctor outside the jail.                   Thus, even if the

magistrate judge’s comments constituted improper inferences, the

court clearly did not abuse its discretion in determining that Hill

had     failed    to    offer   credible     evidence     that    his   plea   was

involuntary.


                                         - 8 -
            Hill next challenges the district court’s denial of his

motion to suppress the evidence found in the trailer.                       He contends

that (1) his disavowal of the trailer was involuntary and should

have been suppressed as it followed his illegal arrest, and (2) his

sister lacked “common authority” over the trailer.                          He asserts

that,    because   he     can   show    that    the   motion     to    suppress       was

improperly      denied,    he   has    made    a    credible    showing       of    legal

innocence.3

            Even    if    Hill’s      disavowal     should     not    bar     him    from

challenging the subsequent search, he must still show that his

sister lacked “common authority” in order to show that the evidence

should   have    been     suppressed.         The    Government       can    justify    a

warrantless search by showing permission to search by “a third

party who possessed common authority over or other sufficient

relationship to the premises or effects sought to be inspected.”

United States v. Matlock, 415 U.S. 164, 171 (1974).                     Authority to

consent arises from mutual use of the property by those with joint

access or control, so that a cohabitant would recognize the risk



     3
      While in general a properly represented defendant who pleads
guilty waives the right to withdraw his guilty plea in order to
pursue Fourth Amendment claims, see Vasquez v. United States, 279
F.2d 34, 36-37 (9th Cir. 1960), here the district court narrowly
revisited the issue after the Supreme Court’s decision in
Georgia v. Randolph, 547 U.S. 103 (2006), and only in the context
of Hill’s motion to withdraw his guilty plea. Because motions to
withdraw guilty pleas are entrusted to the sound discretion of the
trial court, we will review the issue to the extent the district
court examined it.

                                        - 9 -
that another might allow a common area to be searched.       Trulock v.

Freeh, 275 F.3d 391, 403 (4th Cir. 2001).        “[T]he exception for

consent extends even to entries and searches with the permission of

a co-occupant whom the police reasonably, but erroneously, believe

to possess shared authority as an occupant.” Randolph, 547 U.S. at

103.   “[I]t would be unjustifiably impractical to require the

police to take affirmative steps to confirm the actual authority of

a consenting individual whose authority was apparent.”           Id.

            Here, Hill told the officers that his sister owned the

trailer and that they had to seek consent from her.       He then gave

them directions to her house.         While his statements may not

constitute abandonment of his standing to challenge the search,

Hill provides no legal support for the conclusion that the officers

were not entitled to rely on this information in determining

whether the sister had authority to grant consent.       Whether Hill’s

statements were true or not, the police officers acted on them and

confirmed   their   validity   when   speaking   with   Hill’s    sister.

Specifically, Hill’s sister was found at the address stated by

Hill, and she agreed that she owned the property, stated that she

stored personal items there, and did not state that she lacked

authority to grant consent.     Thus, we hold that the police acted

reasonably in relying on Hill’s sister’s consent.           See United

States v. Kinney, 953 F.2d 863, 867 (4th Cir. 1992) (holding that

officers acted reasonably in relying on the consent of cohabitant


                                - 10 -
to search a locked closet when she produced a key, even though it

turned out that the defendant kept the closet locked and did not

give the cohabitant permission to use it).

              Accordingly,    the    district     court   properly   denied   the

motion to suppress the evidence found in the trailer.                  As such,

Hill has failed to make a credible showing of legal innocence to

support his motion to withdraw his guilty plea.

              Further, even assuming that the district court’s findings

regarding duress and the motion to suppress were somehow suspect,

the court’s remaining findings would still support the denial of

the motion.      Specifically, the court found that Hill delayed for

nearly ten months after his guilty plea before filing his motion to

withdraw.     In fact, his challenge was not made until Hill found out

that    the   Government     was    not   going   to   make   a   motion   for   a

substantial assistance departure.              Thus, although he would have

known that he had been coerced to plead guilty at the time of his

plea, he delayed informing the court of his reasons until it proved

advantageous to him. Further, Hill had close assistance of counsel

throughout his proceeding, resulting in a partially successful

motion to suppress and a successful motion for outside medical

care.    In addition, it would be a waste of judicial resources to

permit the withdrawal of the plea after such a long delay.

              Finally, even if the motion to suppress was improperly

granted, Hill has still not made a credible showing of innocence.


                                      - 11 -
The factual basis given at his plea hearing, with which Hill

agreed, showed that others present at the time of Hill’s arrest had

also been involved in making methamphetamine and that witnesses had

admitted to being involved with Hill and his methamphetamine lab.

In addition, the presentence report states that five witnesses

testified in front of the grand jury about Hill’s methamphetamine

business, each of which was also part of the business.                              They

testified in detail about the regularity of Hill’s business, the

jobs of the other members of the conspiracy, and how firearms were

regularly traded for methamphetamine.                 Hill offered no evidence

disputing   the     factual     basis    which   was    presented     at     his    plea

colloquy,   and     he    proffers      no   challenge    to    the    Government’s

potential witnesses.          Thus, regardless of the correctness of the

decision on the motion to suppress, Hill failed to credibly assert

his legal innocence.          Further, on appeal, Hill does not dispute

that his delay was intentional and lengthy, that he had close

assistance of counsel, or that it would be a waste of judicial

resources to permit withdrawal of his plea.

            Based    on   the    foregoing,      we    find   that    Hill    was    not

prejudiced by any errors of the district court in deciding his

motion to withdraw his guilty plea.                   Accordingly, the district

court did not abuse its discretion in denying Hill’s motion.




                                        - 12 -
                                      III.

          Hill     challenges    the    calculation    of   his   statutory

mandatory minimum sentence, arguing that he did not have a prior

drug   felony     sufficient    to     trigger   the   enhanced   minimum.

Specifically, Hill was convicted of possession and distribution of

more than half an ounce, but less than five pounds, of marijuana.

Under Virginia law, the conviction was a Class 5 felony, punishable

by not less than one year nor more than ten years in prison.           Va.

Code Ann. §§ 18.2-10, 18.2-248.1(a)(2) (Supp. 2004).              However,

“[i]f such person proves that he gave, distributed or possessed .

. . marijuana only as an accommodation to another individual and

not with intent to profit . . . he shall be guilty of a Class 1

misdemeanor.” Va. Code Ann. § 18.2-248.1. Hill was only sentenced

to one year on this offense.            Thus, he contends that it was

possible that he was convicted only of a misdemeanor and that,

therefore, the enhancement was improper.

          We have held that a “felony drug offense” under § 841(b)

is defined in 21 U.S.C.A. § 802(44) (West Supp. 2006) to mean “an

offense that is punishable by imprisonment for more than one year

under any law . . . that prohibits or restricts conduct relating to

. . . drugs.”      United States v. Burgess, 478 F.3d 658, 662 (4th

Cir. 2007).     Thus, the issue is not whether the crime is classified

as a misdemeanor under state law or what the defendant’s actual




                                     - 13 -
prior sentence was, but rather whether the prior conviction’s

maximum possible sentence was over a year.              Id.

            Here,     the    district     court   concluded   that        Hill   was

convicted of a crime punishable by over one year.                   The district

court correctly determined that, even if Hill was found to have

distributed drugs as an accommodation rather than for profit (Hill

presents no evidence that this is true), he was still convicted of

a “prior drug felony” under the federal statute, because the

offense was potentially punishable by over a year in prison.

Virginia state law also supports this conclusion.                 See Winston v.

Commonwealth, 434 S.E.2d 4, 6 (Va. App. 1993) (accommodation

statute    provides    for    mitigation     of   punishment);      Stillwell     v.

Commonwealth,       247 S.E.2d 360, 365 (Va. 1978) (“The provisions of

§ 18-248(a), which deal with the reduced penalty contingent upon

proof of an accommodation gift distribution, or possession of

marijuana operate only to mitigate the degree of criminality or

punishment,    rather       than   to   create    two   different    substantive

offenses.”); Gardner v. Commonwealth, 225 S.E.2d 354, 356 (Va.

1976)     (distribution      for    accommodation       creates     two     defined

gradations of punishment, not two separate offenses).                     Thus, the

district court properly calculated Hill’s sentence.




                                        - 14 -
           Accordingly, we affirm Hill’s conviction and sentence.4

We   dispense   with   oral   argument,   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                   AFFIRMED




      4
      In his reply brief, Hill attempted to raise new claims.
However, these claims are barred by his failure to raise them in
his opening brief. See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir.
2001).

                                  - 15 -
