                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-4777



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

           versus


STANLEY MCCOY CROSS,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00124-H)


Argued:   September 28, 2007                 Decided:   December 5, 2007


Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and Samuel G.
WILSON, United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Chief Judge Williams and Judge Wilson concurred.


ARGUED: Anthony Emerson Flanagan, Raleigh, North Carolina, for
Appellant. Banumathi Rangarajan, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: George E. B. Holding, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding in this circuit.
GREGORY, Circuit Judge:

     The appellant, Stanley McCoy Cross (Cross), was convicted and

sentenced to 96 months incarceration for possession of a firearm by

a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924 (West 2000)

and possession of a stolen firearm in violation of 18 U.S.C.

§§ 922(j) and 924 (West 2000).    Cross argues that the case should

be remanded to the United States District Court for the Eastern

District of North Carolina (“district court”) because (1) during

his arraignment/Rule 11 colloquy, the district court failed to

inform Cross that his previously withdrawn motion to suppress could

not be “restored”, and (2) the district court improperly denied

Cross’s motion to re-file his motion to suppress.1   We affirm the

judgment of the district court.



                                  I.

     On August 18, 2005, the district court issued a pretrial

scheduling order for Cross’s trial.    The order stated that “[a]ll

pretrial motions, including motions to compel discovery, motions to

suppress, and motions under Rule 7, 8, 12, 13, 14, 16, and 41, Fed.




     1
      Cross also asks us to consider whether the district court
should have had a probable cause hearing to discuss Cross’s
allegation that he was not given Miranda warnings. (Appellant’s
Br. 2.) Since Cross included this issue in his initial motion to
suppress, the analysis in Part II is equally applicable to this
contention.

                                  2
R. Crim. P., shall be filed no later than September 11, 2005” and

that “[u]ntimely motions...may be summarily denied.” (J.A. 15.)

     On January 6, 2006, Cross filed a motion to suppress all of

the evidence seized at the scene of the alleged crime (i.e., the

handgun, ammunition, crack cocaine, and statements made to the

police) along with the statements Cross made to the police during

his subsequent incarceration.   On January 17, 2006, Cross filed a

Motion to Permit Tardy Filing of Affidavit.    On February 6, 2006,

the Government filed its response to Cross’s motion to suppress.

     On February 10, 2006, a suppression hearing took place before

Magistrate Judge David W. Daniel.    At the hearing, Cross withdrew

his motion to suppress and a plea agreement was presented to the

court.2   On February 22, 2006, a notice of hearing for Cross’s

arraignment was sent out to all the parties.

     On March 6, 2006, Cross was arraigned before the magistrate

judge.    At the outset of the hearing, Cross’s attorney, Joshua

Willey, Jr., (Willey) asked for a continuance.    The Government’s

attorney, John Bennett (Bennett),3 stated he had no opposition to

the continuance and that Willey had informed him that Cross had

changed his mind about the plea agreement and would enter a not

guilty plea.



     2
      The transcript of the hearing is not a part of the record.
     3
      Assistant United States Attorney (AUSA) Bennett was sitting
in for AUSA Skiver, the attorney assigned to this case.

                                 3
      Thereafter, a brief discussion ensued over Cross’s request for

a new attorney to replace Willey. The magistrate judge ultimately

denied4 Cross’s request, but gave Cross the option of continuing

the   arraignment    or   moving   forward    with    the   arraignment    as

scheduled. Cross responded, “I’d rather move forward.” (J.A. 65.)

      After the magistrate judge called for a brief recess in order

to allow Cross another opportunity to discuss the plea agreement

with Willey, the Rule 11 colloquy commenced.          The magistrate judge

methodically followed the mandates of Rule 11 of the Federal Rules

of Criminal Procedure throughout the colloquy, focusing on Cross’s

understanding of the plea agreement.          When the magistrate judge

asked if Cross understood “the terms, the language, the words, the

sentences, even the fancy legal words and phrases used in the plea

agreement,” Cross replied in the affirmative.          (J.A. 75.)   Despite

Cross’s   apparent    understanding      of   the    plea   agreement,    the

magistrate judge called a bench conference in which the following

conversation took place:


      4
      Cross had several complaints about the attorneys assigned to
represent him. After Cross filed a motion pro se to dismiss his
first appointed attorney, the district court dismissed that
attorney and replaced him with Willey. After the magistrate judge
denied Cross’s request to replace Willey at the arraignment, Cross
informed the district judge by a letter dated March 14, 2006, that
Willey had “deceived and manipulated” him. (J.A. 92.) On March
20, 2006, Willey filed a motion to withdraw as counsel based on
Cross’s allegations of professional and ethical misconduct. (J.A.
87-91.) The district court denied Cross’s request and Willey’s
motion, stating that it was “tired of [Cross’s] constant
dissatisfaction with the experienced and competent attorneys
appointed to represent him.” (J.A. 93.)

                                     4
Judge:     Obviously Mr. Cross is not sure what he
           wants to do...My inclination would be
           just to go ahead and take a not guilty
           plea from him...

Bennett:   ...I think the only thing we can do at
           this point is the Court to enter a not
           guilty plea for him and schedule it for
           trial.   If in fact he changes his mind
           ultimately by the time [District] Judge
           Howard sets for trial, you know, [the
           plea agreement is] still operative. But
           [Cross] just clearly doesn’t appear that
           he wants to do it.

Judge:     I don’t feel comfortable accepting his
           plea based upon his conduct in court
           today. At the same time, I don’t want to
           do anything that’s going to work to his
           long term disadvantage if that were
           foreclosed. Mr. Bennett, that would not
           foreclose him from attempting to?

Bennett:   I can speak for [AUSA] Skiver in that
           regard. I’ve never known him to take it
           as a matter that would be foreclosed. He
           would consider it again.    But he’s not
           acting like a man who wants to plead
           guilty today.

Judge:     That’s the Court’s impression.

Willey:    I’d rather just continue it.

Judge:     I’m not, based on his correspondence,
           having trouble in doing that. I’m going
           to ask him. I’m going to enter a plea of
           not guilty for him and I’ll ask you to go
           back and talk with Judge Howard to set a
           trial date.    I’m going to say on the
           record that I understand he would still
           be able to potentially work out something
           with the government to enter into that
           plea agreement or have it enforced prior
           to that trial date. I think in essence
           that would operate like a continuance as
           a practical matter.


                       5
     Willey:          Yes, sir.

(J.A.   75-76.)     Immediately   after   the   bench   conference,   the

magistrate judge and Cross had the following discussion:

     Judge:           Mr. Cross, I’ve just spoken with your
                      attorney as well as the attorney for the
                      government.   I’m concerned because you
                      appear to be quite anguished by this,
                      which is understandable.     As such, I
                      don’t feel that I can accept that
                      Memorandum of Plea Agreement today based
                      on your concern. Now if I’m not reading
                      that correctly, you need to let me know
                      right now. Do you have concern over the
                      plea agreement?

     Cross:           Yes.

     Judge:           You do, okay. I’m going to enter a plea
                      based on what I’ve seen.    I’m going to
                      enter a plea of not guilty on your behalf
                      because of what’s happened here today.
                      Now Mr. Bennett, on behalf of Mr. Skiver,
                      the U.S. Attorney, has said that this
                      Memorandum of Plea Agreement will remain
                      in your file and if you decide that you
                      want to proceed with that, Mr. Willey can
                      assist you in doing that and working
                      something out with Mr. Skiver. But based
                      on what’s happened here in court today,
                      I’m left with no other option other than
                      to plead not guilty for you.      Is that
                      your desire?

     Cross:           Yes.

(J.A. 77-78.)     Prior to the close of the hearing, the magistrate

judge reiterated that Cross would be able to proceed with the

change of plea at a later date should he choose to do so.             The

magistrate judge did not discuss whether Cross would be permitted

to re-file his motion to suppress.


                                   6
     On March 6, 2006, Senior United States District Judge Malcolm

Howard scheduled jury selection and trial for March 27, 2006.

(J.A. 80.)    On March 20, 2006, Cross filed a Motion to Refile

Suppression Motion. (J.A. 83-86.) Cross did not provide the court

with any reason for the tardiness of his motion.           On March 21,

2006, Judge Howard denied the motion.    (J.A.   94-97.)   On March 29,

2006, after a two day trial, Cross was found guilty on both counts

of the indictment.   (J.A. 431-434.)   On July 12, 2006, Judge Howard

sentenced Cross to 96 months incarceration on both counts to run

concurrently and three years supervised release as to each count

which would also run concurrently.        (J.A. 453.)      This appeal

followed.



                                II.

                                 A.

     A district court’s compliance with Rule 11 of the Federal

Rules of Criminal Procedure is evaluated under a “harmless error”

standard.    Fed. R. Crim. P. 11(h)5; United States v. DeFusco, 949

F.2d 114, 117 (4th Cir. 1991).        A district court’s decision to

grant or deny an untimely motion to suppress is reviewed for “clear

error.”   United States v. Ruhe, 191 F.3d 376, 385 (4th Cir. 1999).




     5
      Fed. R. Crim. P. 11(h): “ A variance from the requirements
of this rule is harmless error if it does not affect substantial
rights.”

                                 7
                                  B.

     Cross argues that the magistrate judge was required to inform

him that he was losing his right to file a pretrial motion during

the arraignment.    As a result, Cross states that he was “unduly

prejudiced”   and   his   “substantive     rights”    were   violated.

(Appellant’s Br. 9.)   The Government argues that the Federal Rules

of Criminal Procedure do not require the district court to provide

any information to a defendant concerning rights relating to the

filing of pretrial motions.    (Appellee’s Br. 14.)   For the reasons

below, we reject Cross’s argument.

     Rule 11 requires that before a district court can accept or

reject a change of plea, it must conduct a plea colloquy during

which it advises and questions the defendant about specific issues,

including his waiver of certain rights, the nature of each charge

to which the defendant is pleading, and any minimum and maximum

possible penalty he faces.    Neither Rule 11's literal text nor the

advisory notes require that a district court advise the defendant

about how it will handle pretrial motions, including the filing of

such motions after the deadline established by the court.

     In further support of his claim, Cross cites to case law from

our Circuit and the Supreme Court.     In particular, Cross relies on

the Supreme Court’s decision in United States v. Hyde, 520 U.S. 670

(1997).   The central issue in Hyde was whether a defendant could

withdraw his guilty plea without complying with Rule 32(e) of the


                                  8
Federal    Rules   of    Criminal     Procedure,6      which     requires   that    a

defendant provide the court with a “fair and just reason” for the

withdrawal.     Cross contends that Hyde stands for the proposition

that upon refusing to accept a plea agreement, a court must advise

a defendant that it is not bound by the plea agreement, give him an

opportunity to withdraw his plea, and warn the defendant that

withdrawal of his plea may lead to a less favorable disposition.

Cross argues that due to the district court’s rejection of his

plea agreement and guilty plea sua sponte,7 Cross did not receive

any   warning   that     he   would    be       “proceed[ing]    under   much    more

treacherous conditions.” (Appellant’s Br. 12.) As a result, Cross

contends   that    the   “denial      of    his    opportunity    to   contest    the

probable cause in this matter was improper.” (Appellant’s Br. 12.)

      The Government responds, and we agree, that Cross’s comparison

to Hyde is misplaced because that decision concerned the entry and

withdrawal of guilty pleas.            Cross, on the other hand, did not

enter or withdraw a guilty plea, but rather “a not guilty plea was

entered on his behalf, with his acquiescence.”                    (Appellee’s Br.




      6
      Rule 32(e) became Rule 11(d) and (e).                The relevant portion
is currently located in Rule 11(d)(2)(B).
      7
      As we previously discussed, the record does not support
Cross’s version of the events. The transcript of the arraignment
clearly shows that the court entered a plea of not guilty with
Cross’s explicit acquiescence.

                                            9
13.)       Thus, neither Hyde nor any of the other cases8 Cross cites

address the dispositive issue - i.e., whether a district court is

required to notify the defendant of any rights relating to pretrial

motions at an arraignment and/or change of plea hearing.                As such,

those cases are inapposite to the current inquiry.

       Overall, “[i]n reviewing the adequacy of compliance with Rule

11,    this    Court   should   accord   deference   to   the   trial   court's

decision as to how best to conduct the mandated colloquy with the

defendant.”      DeFusco, 949 F.2d at 116.      The trial court’s Rule 11

colloquy/arraignment9 did not harm any of Cross’s procedural or

substantive rights.        As such, Cross’s argument must fail.

                                         C.

       The district court denied Cross’s motion to re-file his motion

to suppress based on our precedent, including United States v.

Chavez, 902 F.2d 259 (4th Cir. 1990) and Cross’s failure to comply

with the “good cause” requirement in Rule 12(e) of the Federal

Rules of Criminal Procedure.             Specifically, the district court

denied the motion because (1) it was filed “more than two months”


       8
      Cross cites to Fourth Circuit jurisprudence holding that Rule
11 allows a court to enter a plea of guilty separately from its
decision to accept or reject a change of plea agreement. See e.g.,
United States v. Ewing, 957 F.2d 115, 118-119 (4th Cir. 1992). As
the instant case does not involve this issue, further discussion of
these cases, including Ewing, is not necessary.
       9
      Rule 10 of the Federal Rules of Criminal Procedure provides
guidance to district courts on how arraignments must be conducted.
Cross does not provide any evidence that the district court failed
to follow any aspect of this rule.

                                         10
after the pretrial motions deadline had passed and over a month

after Cross “withdrew his initial motion to suppress,” (2) Cross

“only had himself to blame” for not filing the motion on time,

since he “failed to abide by the terms of a plea agreement and

altered his plea at his arraignment on March 6, 2006,” (3) there

was no evidence that the Government did anything that “led to the

predicament in which defendant now finds himself,” and (4) Cross

did not receive any additional information from any source after

the filing deadline which “alerted defendant to facts on which a

motion to suppress might be based.”   (J.A. 95-96.)   In addition,

the court held that Cross’s motion did not meet the “good cause”

threshold of Rule 12(e).10

     Cross argues that the district court’s denial of his motion to

re-file constituted clear error, in part, because it incorrectly

distinguished the instant case from prior Fourth Circuit precedent,

including Chavez.11 The Government responds that the district court


     10
      Fed. R. Crim. P. 12(e): “A party waives any Rule 12(b)(3)
defense, objection, or request not raised by the deadline the court
sets under Rule 12(c) or by any extension the court provides. For
good cause, the court may grant relief from the waiver.”
     11
      Cross also argues that he wanted to plead guilty, and was
prevented from doing so by the magistrate judge.      For example,
Cross states that during the arraignment, “[t]hough Appellant had
entered a Memorandum of Plea, the magistrate judge entered a plea
of not guilty for Appellant due to the doubts and issues expressed
by Appellant.   The withdrawal was not at Appellant’s request.”
(Appellant’s Br. 5.)    Cross’s claim is patently false.     As we
previously discussed, the magistrate judge provided Cross with
several opportunities to speak directly with the court and with his
attorney in order to clarify his intentions regarding the plea

                                11
properly denied Cross’s untimely motion to suppress because Cross

possessed all of the information necessary to file the motion in a

timely manner, and Cross did not provide the district court with

good cause justifying the tardiness of the motion.

       Since both the district court and Cross cite to our decision

in Chavez, it is worth setting out the facts of that decision in

some   detail.     The   defendant,   Leonardo   Chavez,   moved   for   a

suppression hearing eleven days prior to his trial.        The delay in

filing the suppression motion rested squarely on the United States

since it did not turn over evidence directly relevant to the

suppression issue until one day before the filing.           The United

States would have suffered no prejudice if the court had granted

the defendant’s motion for a suppression hearing. Nonetheless, the

district court denied the defendant’s motion and after an appeal,

we reversed, holding:

       We are not unmindful of the pressures of pretrial
       activity, or of the importance of court-imposed
       deadlines, but when counsel requests a suppression
       hearing almost two weeks prior to trial and the day after
       receiving the grand jury transcript, which revealed a
       concern that the defendant had unsuccessfully inquired
       into at the preliminary hearing, we conclude that a
       denial of this request constitutes a clear abuse of
       discretion.

Chavez, 902 F.2d at 264.




agreement.


                                  12
       Chavez is distinguishable from the instant case on at least

three counts:    (1) Cross had all of the information necessary to

file the motion to suppress on time, or in the alternative, re-file

it at the arraignment or shortly thereafter; (2) the Government was

not withholding any information from Cross; and most importantly,

(3) Cross fails to demonstrate that his tardiness in filing was not

due to “negligence, oversight, or laziness.”     Chavez, 902 F.2d at

263.    Thus, Cross’s attempted comparison to Chavez is without

substance, and must fail.

       Also, despite Cross’s claims to the contrary, there is nothing

in the record supporting the view that the district court had

predetermined that any pretrial motions filed by Cross after the

arraignment would be denied. Presumably, if Cross had provided any

indicia of “good cause,” as required by Rule 12(e), the district

court would have considered the motion on its merits.

       It is well known that “reviewing courts rarely grant relief

from denials of untimely suppression motions.” Chavez, 902 F.2d at

263.    The factual circumstances underlying Cross’s appeal do not

fall into the rare category of cases that merit reversal of a

district court’s denial because Cross’s motion to suppress was

voluntarily withdrawn by Cross, Cross’s motion to re-file was

tardy, and Cross’s motion to re-file failed to provide any excuse

for its tardiness, much less a “dubious excuse.”    Chavez, 902 F.2d

at 263.     Thus, we find that the district court did not commit


                                  13
error, let alone clear error, in denying Cross’s motion to re-file

his motion to suppress.



                                  III.

     We conclude that the magistrate judge’s actions during the

arraignment and Rule 11 colloquy did not result in any harm to

Cross’s procedural or substantive rights and the district court did

not commit clear error by denying Cross’s motion to reinstate his

motion   to   suppress.   Thus,   the    district   court’s   decision   is

affirmed.

                                                                 AFFIRMED




                                   14
