                                                  Filed:   July 29, 2010

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-4673
                        (3:07-cr-00061-FDW-14)


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

STEVEN JERMONTE CURETON, a/k/a Rollo,

                 Defendant - Appellant.



                                O R D E R


           The court amends its opinion filed July 23, 2010, as

follows:

           On   page   3,   first   full   paragraph,   line   10   --   “24

months’” is corrected to read “240 months’.”

                                           For the Court – By Direction


                                               /s/ Patricia S. Connor
                                                         Clerk
                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4673


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

STEVEN JERMONTE CURETON, a/k/a Rollo,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00061-FDW-14)


Submitted:   July 14, 2010                 Decided:   July 23, 2010


Before KING, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph   R.  Conte,   LAW OFFICES    OF   J.R.   CONTE,   P.L.L.C.,
Washington, D.C., for Appellant. Edward R. Ryan, United States
Attorney,   Jennifer   Lynn  Dillon,    Assistant   United   States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Steven Jermonte Cureton was charged in five counts of

a multi-count indictment filed against multiple defendants.                                            On

September 26, 2007,               Cureton    executed             an    agreement             with    the

Government,       in     which       he     pled       guilty          to    Count        I    of     the

indictment: conspiracy to possess with the intent to distribute

cocaine base, cocaine, marijuana and ecstasy, in violation of

21 U.S.C. §§ 841, 846 (2006).

            On October 3, 2007, Cureton appeared before a United

States Magistrate Judge for a Rule 11 hearing.                                     The magistrate

judge    recited       the    elements       of       the   offense          and    the       mandatory

minimum    and    maximum         penalties        applicable,              and    Cureton       stated

that he understood them.                   The Government recited the terms of

Cureton’s    plea       agreement,          the       court       questioned        Cureton,          and

Cureton stated that he was guilty of conspiracy to distribute

drugs.

            On     December         28,     2007,       over       three      months          after    he

executed his plea agreement, Cureton filed a pro se motion to

withdraw    his        guilty       plea.         Apparently            concerned             with    the

possibility      that        he    could    receive           a    life      sentence          for    his

crimes, Cureton argued at a hearing before the district court

that his plea agreement was not valid because it incorrectly

recited that he was a “member” of the “Hidden Valley Kings,” a

street gang that seems to have been the central target of the

                                                  2
Government’s      investigation.           Cureton     did    admit       that   he   sold

drugs with gang members, though he maintained that he did not

know their gang affiliation at the time, despite the fact that

they “grew up together.”               Cureton stated he would “plead to

anything but being a part of a gang.”

               The district court repeatedly informed Cureton that he

had not pled guilty to being a member of a gang, but rather to

conspiracy to distribute drugs, and concluded that the issue of

whether or not Cureton was a member of a gang did not directly

have any bearing on an element of the charge of conspiracy to

distribute drugs that Cureton had plead guilty to.                         Accordingly,

the court determined that it could not grant Cureton’s motion,

especially since Cureton had stated several times throughout the

hearing that he had conspired to sell drugs.                           Following the

denial    of    his   motion,      Cureton      was   sentenced      to    240   months’

imprisonment, among other punishments.                 Cureton appealed.

               This   Court   reviews      a    district     court’s       denial     of   a

motion    to    withdraw      a   guilty       plea   for    abuse    of    discretion.

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).                              A

defendant may not withdrawal a guilty plea as a matter of right.

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

1991)).    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

                                           3
that essentially challenges . . . the fairness of the Rule 11

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

Cir. 1992) (en banc).

            As an initial matter, it should be noted that Cureton

does not allege that the district court committed any specific

error in conducting its Rule 11 colloquy, and an independent

review     of    the      record    establishes         that     the     lower       court

substantially          complied      with        all     of      its     obligations.

Accordingly, Cureton must overcome a strong presumption that his

guilty plea is final and binding.                Lambey, 974 F.2d at 1394.

            In determining whether Cureton has carried his burden,

and   overcome     this    presumption,         this   court    must     consider     six

factors:

      (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.

Ubakanma, 215 F.3d at 424 (citing Moore, 931 F.2d at 248

(footnote omitted)).

            This    court     has    previously        stated     that    the    first,

second   and    fourth     factors    are       the   most    significant,      as   they

“speak most straightforwardly to the question of whether the


                                            4
movant     has    a     fair    and   just        reason     to       upset    the     settled

systematic expectations” by withdrawing his guilty plea.                                United

States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995).                                 We find

that Cureton has failed to carry his burden with regard to at

least these three factors.

            First,        Cureton     has     failed       to     offer       any     credible

evidence to overcome the presumption that his plea was knowing

and voluntary.           In a signed document entered contemporaneously

with his plea colloquy, which tracks closely with the questions

Cureton was asked in open court, Cureton stated that he had not

been threatened or intimidated into pleading guilty, he was not

under the influence of drugs or alcohol or otherwise incapable

of   understanding        the     charges     against      him,       he    understood       the

charges against him, and was pleading guilty because he was in

fact guilty.           Cureton has not attempted to directly refute any

of these statements.

            In     both     his     plea    agreement           and    at     his    Rule     11

colloquy,        the    material      terms       of   his      plea        agreement       were

explained to Cureton, and in both instances, he acknowledged

that he understood them.               To escape the consequences of these

actions,    Cureton       is    now    attempting          to     cloud       the    issue   by

attacking a non-essential passage in his plea agreement, which

is of marginal relevance, to undermine the overall voluntariness

of his assent to the material terms of his agreement.

                                              5
           Cureton’s           statements            at      his        motion        hearing

conclusively establish that he is not legally innocent of the

conspiracy      charge    to     which    he       pled.     As    the    district     court

stated, Cureton’s many in-court admissions that he conspired to

sell drugs made it virtually impossible for the lower court to

allow him to withdraw his guilty plea.

           Cureton has also attempted to show that his plea was

involuntary or otherwise invalid by generally averring that his

attorney was inaccessible and/or did not cooperate with him;

however, his self-serving statements on this point cannot carry

the day.     A defendant seeking to establish that he is entitled

to withdraw his plea because he did not receive close assistance

of counsel must demonstrate that counsel performed deficiently

and that, but for counsel’s errors, the defendant would not have

pled   guilty    and     would    have    insisted         on    proceeding      to   trial.

United States v. Bowman, 348 F.3d 408, 416 (4th Cir. 2003).

Cureton stated at his motion hearing that he would “plead to

anything but being a part of a gang,” which, ironically, is

precisely what he did.            This statement obviously falls far short

of establishing that but for counsel’s errors, assuming some

occurred, Cureton would have insisted on going to trial.

           Finally,       while     the    fifth       and      sixth    factors      neither

counsel strongly for or against allowing Cureton to withdraw his

plea, the fact that Cureton waited over three months to file his

                                               6
motion    must    be   taken     into      account    in     determining    that     the

district court did not abuse its discretion.                    While delay is not

necessarily dispositive in all instances, it should be noted

that this court has considered a much shorter delay to undermine

a defendant’s prospects of withdrawing an accepted guilty plea.

Cf.    Moore,    931   F.2d    at    248    (six-week      delay   weighed     heavily

against defendant).

             In any event, because Cureton has failed to establish

that   the   Moore     factors      counsel     in   favor    of   allowing    him    to

withdraw his guilty plea, we hold that the district court did

not abuse its discretion.               Accordingly, we affirm the district

court’s judgment.         We dispense with oral argument because the

issues   are     adequately      presented      in   the     materials     before    the

court and argument would not aid the decisional process.



                                                                              AFFIRMED




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