                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5131


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

ANTONIO MOSCOL,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00003-F-1)


Submitted:   September 15, 2008             Decided:   October 8, 2008


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


Affirmed by unpublished per curiam opinion.


R. Clarke Speaks, SPEAKS LAW FIRM PC, Wilmington, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             On January 3, 2007, Antonio Moscol was charged with

two counts of distribution of cocaine base, in violation of 21

U.S.C.A.     §    841(b)    (West     2000   &      Supp.    2008).       The   dates   of

offense    were     June    8,    2006   and     June       28,   2006,     respectively.

Moscol pled guilty, without the benefit of a plea agreement, on

March 5, 2007.             However, on August 30, 2007, Moscol filed a

motion to withdraw his guilty plea.                        On October 19, 2007, the

district court entered an order denying Moscol’s motion.                                On

November 19, 2007, the district court sentenced Moscol to 108

months’ imprisonment on both counts to be served concurrently.

Moscol timely noted his appeal.

             Moscol first argues on appeal that the district court

erred   in       denying    his   motion       to    withdraw      his      guilty   plea.

According to Moscol, it was unreasonable for the district court

to deny his motion to withdraw his guilty plea because there was

uncertainty regarding the quantity of crack he sold and because

the Government would not have suffered prejudice had his motion

been granted.       Moscol’s claim is without merit.

             This court reviews a district court’s refusal to allow

a defendant to withdraw a guilty plea for abuse of discretion.

United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).                             A

defendant    may     withdraw     a   guilty        plea    before    his    sentence   is

imposed if “the defendant can show a fair and just reason for

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requesting the withdrawal.”             Fed. R. Crim. P. 11(d)(2)(B).              Six

factors to be considered in granting or denying a motion to

withdraw a guilty plea are:

     (1)   whether  the  defendant   has  offered  credible
     evidence that his plea was not knowing and 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.

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).

              This court closely scrutinizes the Rule 11 colloquy

and attaches a strong presumption that the plea is final and

binding if the Rule 11 proceeding is adequate.                   United States v.

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).                      A voluntary and

intelligent plea of guilty “is an admission of all the elements

of a formal criminal charge . . . and constitutes an admission

of all material facts alleged in the charge.”                       United States

v. Willis,      992    F.2d   489,      490    (4th    Cir.     1993)   (quotations

omitted).

              Prior to accepting Moscol’s guilty plea, the district

court conducted a thorough Rule 11 hearing, during which the

district      court   explained    to      Moscol     the   elements    of   the   two

counts   in    the    indictment     and      the   potential    penalties    Moscol

faced upon conviction.            Moscol indicated to the court that he


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understood    the    elements     of    the     offenses    and    the   potential

penalties    he   faced.        The    district    court    then    asked    Moscol

whether he distributed more than five grams of crack on June 8

and 28, 2006, to which Moscol replied in the affirmative.

            In    the    district      court,     Moscol    had     argued       that,

although he received the first measurement of drug weight taken

by the Raleigh Police Department (“RPD”) and the measurement of

drug weight taken by the City County Bureau of Identification

(“CCBI”) prior to pleading guilty, he would not have pled guilty

if he had received a second measurement of drug weight conducted

by the RPD.       The district court properly characterized Moscol’s

argument as “specious.”           The minor discrepancies reflected by

the final RPD measurements had no bearing on Moscol’s guilt or

innocence    as   they   were    not    material    to     any    element    of   his

crimes.     Also, the drug weight discrepancies did not affect his

statutory    sentencing      range,      which     was     determined       by     the

threshold quantities alleged in the indictment and admitted by

Moscol, rather than the quantities as measured by the RPD and

CCBI.     Finally, the last measurements by the RPD had no effect

on Moscol’s sentencing guidelines range as the district court

used the lower and more accurate measurements taken by the CCBI




                                         4
in calculating Moscol’s advisory guidelines range.1               Accordingly,

Moscol’s claim is without merit.2

           Moscol    next     argues       that    there    was   insufficient

evidence to support the district court’s determination of drug

weight.   A district court’s determination of drug quantity is a

factual   finding,    which   this     court      reviews   for   clear   error.

United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).

This deferential standard of review requires reversal only if

this court is “left with the definite and firm conviction that a

mistake has been committed.”           United States v. Stevenson, 396

F.3d 538, 542 (4th Cir. 2005)(quoting Anderson v. Bessemer City,

470 U.S. 564, 573 (1985)).             Agent Bommer testified that she

weighed the crack sold by Moscol without its packaging and using

calibrated scales and that the drugs weighed 27.9 grams and 25.7

grams respectively.      The district court was entitled to credit

her testimony.      Moreover, Moscol’s entire argument on appeal is

     1
      CCBI forensic chemist Amy Bommer testified that in most
cases, the weight as measured by the police does not equal the
weight determined by the CCBI because officers who initially
take possession of the drugs usually weigh them in their
packaging and do not use properly calibrated scales. According
to Agent Bommer’s testimony, the differences in weight are
easily attributable to the fact that Bommer did not weigh the
drugs in their packaging, and she used a certified and properly
calibrated scale.
     2
      The Government, in its written response to Moscol’s motion,
admitted that it would not suffer significant prejudice if
Moscol’s motion were granted.



                                       5
based on what may have occurred rather than on facts in the

record.    Accordingly, his claim is without merit.            We therefore

deny his motion to supplement his appellate brief and his motion

to file a pro se supplemental brief and affirm the judgment of

the district court.       We dispense with oral argument as the facts

and legal contentions are adequately presented in the materials

before    the   court   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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