                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-4937


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WILLIAM HOWARD O’NEIL, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:07-cr-00088-LHT-1)


Argued:   September 30, 2009                 Decided:   November 23, 2009


Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished opinion.        Judge Duncan          wrote   the
opinion, in which Judge Motz and Judge Currie joined.


ARGUED: Andrew Brady Banzhoff, Asheville, North Carolina, for
Appellant.    Donald David Gast, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.  ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       William     Howard      O’Neil,      Jr.,   appeals      his   conviction       and

sentence for bank robbery with a dangerous weapon in violation

of 18 U.S.C. § 2113(a), (d).                In this appeal, O’Neil challenges

the district court’s order vacating a magistrate judge’s sua

sponte rescission of the acceptance of his guilty plea, and its

order upholding the validity of his Rule 11 hearing.                             For the

reasons that follow, we affirm.



                                             I.

       In July 2007 a man wearing a black wig robbed a bank in

Morganton, North Carolina.                  During the robbery, the man held

what   appeared      to   be    a    real   gun    to    the   head   of   one    of   the

tellers.         He ultimately fled in a white minivan.                     Some time

later, police officers observed a white minivan parked outside

the home of O’Neil’s mother.                 The officers obtained consent to

search the home and found a pellet gun during their search.                            The

police, however, did not arrest O’Neil at that time because he

did    not   match    the      description        of    the    robber.     Only    after

watching     a    videotape     of    the    robbery     did    the   officers    arrest

O’Neil.

        A federal grand jury indicted O’Neil on October 1, 2007.

The indictment alleged that O’Neil committed a bank robbery in

violation of 18 U.S.C. § 2113(a), and that he assaulted a teller

                                             2
with a dangerous weapon during the commission of the robbery in

violation of § 2113(d).               The district court referred the matter

to   a       magistrate     judge,    who   appointed     counsel     for    O’Neil    on

October 30, 2007.            On December 26, 2007, the government filed a

plea agreement with the court in which O’Neil stipulated that

there was a factual basis for his guilty plea and agreed to

defer the factual-basis presentation required by Federal Rule of

Criminal Procedure 11(b)(3) until sentencing. 1                    Then, on December

27, 2007, the magistrate judge held a Rule 11 hearing at which

O’Neil pleaded guilty.               During this hearing, O’Neil stated that

he had committed the acts charged in the indictment, that his

plea         was   voluntary,      and   that    he     was    satisfied     with     the

representation         of    his     attorney.         Despite    these     statements,

O’Neil later wrote a letter to the district judge complaining

about his attorney’s performance.




         1
       The         relevant     section     of   the    plea     agreement    reads    as
follows:

         With the Court’s permission, the factual basis, as
         required by Fed. R. Crim. P. 11(b)(3), will be
         deferred until the time of sentencing.    The defendant
         stipulates that there is a factual basis for the plea
         of guilty and that the Court may use the offense
         conduct set out in the Presentence Report, except any
         facts to which the defendant has objected, to
         establish a factual basis for the defendant’s plea.

J.A. 13 (emphasis added).


                                             3
     As a result of the letter, the magistrate judge held a

status hearing on January 9, 2008.                During that hearing, O’Neil

stated that he had been misled by counsel into pleading guilty

and that he lied at the Rule 11 hearing when he admitted to

committing      the   crimes     charged.          Counsel    offered     testimony

refuting    O’Neil’s    assertions       regarding     her    performance.        The

magistrate judge found that O’Neil’s complaints were baseless

but appointed a new attorney in an abundance of caution.                           On

January 22, 2008, during a second status hearing, the magistrate

judge   asked     O’Neil’s     new     attorney    whether     O’Neil   wanted     to

withdraw    his    guilty      plea.     The    attorney      responded    that    he

believed his client had some interest in doing so, but that he

needed to talk to him first.              At that same hearing, before the

new counsel spoke with O’Neil, the magistrate judge rescinded

the acceptance of the plea sua sponte, based on his belief that

the plea could not stand after O’Neil repudiated his admission

of guilt.

     The government challenged the magistrate judge’s decision

before the district court.              The district court vacated it and

reinstated    the     guilty    plea.      In     response,    O’Neil   moved     the

district court to withdraw his guilty plea and requested de novo

review of the Rule 11 proceeding.                  The district court denied

O’Neil’s motion to withdraw the plea and upheld the validity of

the Rule 11 proceeding.          This appeal followed.

                                          4
                                              II.

        O’Neil argues that the magistrate judge properly vacated

his guilty plea because, after O’Neil repudiated his admission

of guilt, there was no longer a factual basis for the plea.                                  He

further argues that the district court erred in failing to make

a    determination      that    a    sufficient          factual    basis        existed     for

acceptance      of     the   guilty      plea       when       reviewing      the    Rule    11

proceeding de novo.            We analyze each of O’Neil’s contentions in

turn.



                                              A.

       We first consider the district court’s order vacating the

magistrate judge’s sua sponte decision and reinstating O’Neil’s

guilty plea.         A district court reviews a magistrate judge’s Rule

11 decisions de novo.               United States v. Benton, 523 F.3d 424,

432    (4th    Cir.    2008).       We    review         for    abuse    of   discretion       a

district court’s decision regarding whether to allow a guilty

plea    to    stand.      See   id.      at    434-35      (reviewing         for    abuse    of

discretion a district court’s finding that there was no fair and

just reason to vacate a guilty plea).                          “A district court abuses

its discretion when it acts arbitrarily or irrationally, fails

to     consider      judicially      recognized           factors       constraining         its

exercise of discretion, relies on erroneous factual or legal

premises,      or     commits   an    error         of    law.”         United      States    v.

                                               5
Delfino, 510 F.3d 468, 470 (4th Cir. 2007).                         O’Neil argues that

the   district     court    abused     its       discretion        when    it    found    the

magistrate      judge’s     vacatur      to       be     improper        and    beyond    the

magistrate’s       authority.          O’Neil          asserts     that,       because    his

repudiation      eliminated      the     factual        basis     for     the    plea,    the

magistrate judge’s vacatur was justified.                         We disagree for the

following reasons.

      First, district courts have broad authority to overturn any

Rule 11 decision made by a magistrate judge.                         This authority is

firmly    rooted    in     the   statute         authorizing       magistrate        judges’

functions.      “The Federal Magistrates Act grants district courts

authority to assign magistrates certain described functions as

well as ‘such additional duties as are not inconsistent with the

Constitution and laws of the United States.’”                           Peretz v. United

States,    501      U.S.     923,      924        (1991)         (quoting       28   U.S.C.

§ 636(b)(3)).       We have found that “conducting a plea colloquy

could be considered an ‘additional duty’ within the meaning of

28 U.S.C. § 636(b)(3).”           Benton, 523 F.3d at 431.                     We have also

noted    “the   litigants’       right    to      seek      de    novo    review     of   the

[magistrate judge’s] Rule 11 proceedings as a matter of right.”

Id.   (emphasis     omitted).          Indeed,         as   the    Supreme       Court    has

explained, the reason why delegation of certain proceedings to

magistrate judges does not run afoul of the Constitution is that

“the entire process” before the magistrate judge “takes place

                                             6
under    the    district        court’s    total    control            and     jurisdiction.”

Peretz, 501 U.S. at 937 (citing United States v. Raddatz, 447

U.S. 667, 681 (1980)).             See also Benton, 523 F.3d at 430.                           The

Court has further explained the broad discretion of the district

judge with regard to proceedings before a magistrate judge as

follows:

        The judge may initially decline to refer any matter to
        a magistrate.   When a matter is referred, the judge
        may freely reject the magistrate’s recommendation. He
        may rehear the evidence in whole or in part.     He may
        call for additional findings or otherwise “recommit
        the matter to the magistrate with instructions.”

Peretz,    501    U.S.     at    938    (quoting        Raddatz,        447     U.S.    at     685

(Blackmun,       J.,     concurring)       (quoting       28      U.S.C.       § 636(b)(1)).

Accordingly,       the    district        court    here      had       full     authority      to

overturn the magistrate judge’s sua sponte decision to rescind

the acceptance of the guilty plea.

        Second, the district court was justified in overturning the

plea rescission on these facts because the magistrate judge’s

decision was based on incorrect procedural grounds.                                    The only

reason    the     magistrate       judge     vacated         the       plea    was     that    he

believed he was obligated to do so once the factual basis for

the plea disappeared as a result of O’Neil’s repudiation.                                    This

view    misinterprets       the    requirements         of     Rule      11.      Under       Rule

11(b)(3),       “[b]efore       entering    judgment         on    a    guilty       plea,     the

court    must    determine       that     there    is    a   factual          basis    for     the


                                             7
plea.”     Fed. R. Crim. Pro. 11(b)(3).                As we have previously

explained:

     The requirement to find a factual basis is designed to
     “protect a defendant who is in the position of
     pleading voluntarily with an understanding of the
     nature of the charge but without realizing that his
     conduct does not actually fall within the charge.”

United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007)

(quoting   Fed.   R.   Crim.   Pro.   11       advisory   committee’s    note).

However,     “[b]ecause   judgment        is    not    entered   until    after

sentencing, a court may defer the finding of a factual basis for

the plea until [that time].”          United States v. Martinez, 277

F.3d 517, 522 n.4 (4th Cir. 2002). 2            This court has specifically

explained that the district court “is not required to make such

a determination at the outset of the Rule 11 proceedings; it may

defer its inquiry until sentencing.”                  Id. at 531.   See also

United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008).

Therefore, the district court did not abuse its discretion in

finding that, although O’Neil repudiated his admission of guilt,

the plea did not have to be vacated at that point.




     2
       Martinez cited a previous version of Rule 11 that stated:
“[N]otwithstanding the acceptance of a plea of guilty, the court
should not enter a judgment upon such plea without making such
inquiry as shall satisfy it that there is a factual basis for
the plea.” 277 F.3d 517, 522 n.4. However, Martinez’s analysis
applies with equal force to the new wording of Rule 11.       See
United States v. Ketchum, 550 F.3d 363, 266-67 (4th Cir. 2008).


                                      8
     Third, the district court was correct to conclude that the

magistrate judge had no legal authority to vacate the plea.                 We

have explained that “[b]ecause it is essential to an orderly

working     of    the   criminal   justice   system    that   guilty   pleas

tendered and accepted in conformity with Rule 11 can be presumed

final, it is the defendant’s burden to demonstrate that [he]

should be permitted to withdraw [his] plea.” 3            United States v.

Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995).             At the time of the

magistrate judge’s decision, O’Neil had not moved to withdraw

the plea.        In fact, when asked whether O’Neil wanted to withdraw

the plea, counsel responded that he believed his client had some

interest in doing so, but that he needed to talk to him first.

Not only had O’Neil not met his burden of justifying withdrawal

of the plea at the time of vacatur, it was not even clear that

he wanted to withdraw the plea at all.                The magistrate judge

nonetheless proceeded to vacate the plea because, thinking it

improper to allow the plea to stand without a factual basis, he

concluded that such a result was “fair and just.”             J.A. 61-62.

     3
       We note that O’Neil does not challenge the propriety of
any other aspect of the original Rule 11 proceeding, during
which he unequivocally admitted his guilt.     In fact, O’Neil
concedes that the district court “properly analyzed” the issues
of “whether the proceeding ensured that the defendant was
competent, and that his plea was knowingly and voluntarily
entered.” Appellant’s Br. at 10-11. O’Neil’s only argument is
that the factual basis for the plea disappeared once he
repudiated his admission of guilt.



                                      9
     As we discussed above, the magistrate judge only has such

authority as the district court delegates to him.      See Peretz,

501 U.S. at 924 (quoting 28 U.S.C. § 636(b)(3)).      Although the

magistrate judge was authorized to conduct the plea hearing,

there has been no showing he was ever authorized to vacate an

existing plea.   Given the presumption of finality that attaches

to a guilty plea, and absent any clear delegation of authority

from the district court to the magistrate judge to vacate an

existing plea, the district court was correct to hold that the

magistrate judge exceeded his authority.



                                B.

     O’Neil further argues that the district court erred in not

evaluating whether a factual basis for the plea was established

at the time of the Rule 11 hearing. 4   He asserts as follows:



     4
       In reviewing the Rule 11 proceeding de novo, the role of
the district judge is not to conduct the proceeding anew. Such
a rule would create a serious risk of gamesmanship in the
system. It would incentivize defendants to plead guilty before
a magistrate judge, see what benefit they could derive from
doing so, and, if they were unsatisfied with the result, simply
request a new hearing before the district judge and plead not
guilty.   That would clearly obliterate the “strong presumption
that the plea is final and binding.”    United States v. Bowman,
348 F.3d 408, 414 (4th Cir. 2003). Furthermore, this court has
found that “for the purposes of Rule 11 . . . district judges
retain the authority to review the magistrate judge's actions de
novo.” Benton, 523 F.3d at 429. Therefore it is clear that, in
conducting a de novo review, the district judge’s role is only
(Continued)
                                10
     The defendant acknowledges that the District Court
     ostensibly examined the factual basis at the time of
     the sentencing. 5   However, the defendant does not
     concede that this later finding of a factual basis
     alleviates the District Court from its[] obligations
     under Osborne to determine if a sufficient factual
     basis existed at the time of the plea hearing to
     support accepting the guilty plea. 6

Appellant’s Br. at 11 (footnotes added and citation omitted)

(referencing United States v. Osborne, 345 F.3d 281 (4th Cir.

2003)).   This argument is without merit.   As explained above, a

court is not required to establish a factual basis at the time

of the plea hearing.    See Martinez, 277 F.3d at 531; Ketchum,



to determine whether the Rule 11 hearing was proper at the time
it was conducted.
     5
       Although the district court acted within the scope of its
authority, we think it appropriate to sound a cautionary note
about the process involved for future reference.    While O’Neil
stipulated to deferring the factual basis at the plea hearing
until sentencing--and even stipulated to the sufficiency of the
facts set out in a presentence report that had yet to be
prepared--his attorney stated that O’Neil declined to stipulate
to the factual basis at sentencing. The mere stipulation in the
plea agreement, without any actual facts being referenced or
agreed upon, would probably not have sufficed at sentencing over
O’Neil’s objection. Here, we can rely on the fact, set forth in
the PSR and not objected to, that O’Neil was plainly indicated
on the bank videotape. In the future, however, reference to the
facts supporting the factual basis to which the parties
stipulated at the Rule 11 hearing would be helpful should a
challenge arise.
     6
       Nothing in Osborne, the case referenced by O’Neil in the
paragraph quoted above, suggests otherwise.      Osborne simply
stands for the proposition that a de novo review by the district
court of a magistrate judge’s Rule 11 proceeding is not
constitutionally required unless it is specifically requested by
the litigants. Osborne, 345 F.3d at 290.


                               11
550 F.3d at 367.               Instead, it can defer its inquiry until the

time of sentencing.              Id.    In fact, the parties stipulated to the

deferral     of     the    factual-basis              inquiry     in    the    plea     agreement

filed with the court prior to the initial Rule 11 hearing.

       Accordingly, because the factual basis inquiry for a guilty

plea can be and indeed was properly deferred until sentencing,

the district court did not err in failing to determine whether

such   a    basis    had       been    established          at    the    time    of     the   plea

hearing.



                                                 C.

       Finally,      we    turn        to   the       denial      of    O’Neil’s      motion     to

withdraw his guilty plea.                    O’Neil does not directly challenge

that decision, and indeed attempted to distance himself from the

issue at oral argument.                 In his brief, however, O’Neil suggests

that, in reviewing the motion to withdraw the plea, the district

court was responsible for determining whether a factual basis

existed for it.           We therefore address the issue in an abundance

of caution.

       As   explained          above,       it       is   well    settled       that,    when    a

defendant     moves       to    withdraw         a    plea,      he    bears   the    burden     of

establishing a fair and just reason for the withdrawal.                                  Bowman,

348 F.3d at 413-14.               See also Fed. R. Crim. Pro. 11(d)(2)(B).

O’Neil      has   made      no     attempt           to   do     so,    either       before     the

                                                 12
magistrate judge, the district court, or here.                        Our independent

review also reveals a failure of proof as to this issue.

       We   have   explained          that    “[a]    defendant   has    no    ‘absolute

right’ to withdraw a guilty plea, and the district court has

discretion to decide whether a ‘fair and just reason’ exists

upon which to grant a withdrawal.”                        Bowman, 348 F.3d at 413

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

2000)).     Moreover,

       when a district court considers the plea withdrawal
       motion, “‘the inquiry is ordinarily confined to
       whether the underlying plea was both counseled and
       voluntary’ . . . .  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.’”

Bowman, 348 F.3d at 414 (quoting United States v. Willis, 992

F.2d    489,   490       (4th    Cir.        1993))    (alteration      in    original).

Therefore, “a properly conducted Rule 11 guilty plea colloquy

leaves a defendant with a very limited basis upon which to have

his plea withdrawn.”            Id.

       In determining whether the defendant has met his burden of

establishing       the    “fair       and    just     reason”   for   the    withdrawal,

courts consider various factors, including:

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

                                              13
     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).                   The

Moore factors “that speak most straightforwardly to the question

whether the movant has a fair and just reason” to withdraw the

plea “are the first, second, and fourth.”                  Sparks, 67 F.3d at

1154.        The    rest     “are   better    understood   as     countervailing

considerations that establish how heavily the presumption should

weigh   in    any    given    case.”     Id.      O’Neil   only    ever   raised,

implicitly, factors one, two, and four before the magistrate

judge and the district court.

     With regard to the first factor, O’Neil argued before the

magistrate judge that he would not have pleaded guilty but for

the fact that his first attorney misled him.                 In general, “[a]

defendant who presents a reason for withdrawing his plea that

contradicts the answers he gave at a Rule 11 hearing faces an

uphill battle in persuading the judge that his purported reason

for withdrawing his plea is ‘fair and just.’”                United States v.

Trussel, 961 F.2d 685, 690 (7th Cir. 1992).                     See also United

States v. Wells, No. 94-5666, 1996 U.S. App. LEXIS 7600, at *14

(4th Cir. Apr. 12, 1996).               In the present case, during the

initial Rule 11 hearing, O’Neil stated that he was “entirely

satisfied” with his attorney.                J.A. 91-92.    He has failed to


                                        14
establish, on the basis of any record evidence, that his former

attorney   actually   misled   him;     instead,     he    simply    asks    us    to

accept his allegation. 7    The magistrate judge found that O’Neil’s

allegations about his attorney were “baseless,” J.A. 49, and

explained that his decision to grant new counsel was “not due to

anything that [counsel] did,” J.A. 42.                The magistrate judge

emphasized that his counsel had “gone over and above what any

lawyer would do . . . to represent a client.”               J.A. 42.        We will

not allow the first Moore factor to turn on a litigant’s wholly

unsupported bare assertion, particularly when it is adverse to

an   existing   finding    made   by    a   judge    who    administered          the

proceeding and who had the opportunity to evaluate counsel’s

performance.     We   therefore   find      that    the   first     Moore    factor

counsels against permitting withdrawal of the plea.

      In order to satisfy the second Moore factor, a defendant

“must do more than just demonstrate that [he] had a bona fide

      7
      O’Neil argued before the magistrate judge that his counsel
misled him into pleading guilty in “the way she explained about
the jury” to him, J.A. 202, and “wasn’t truthful to [him] about
her investigation,” J.A. 200.       His counsel explained her
interactions with O’Neil and explained why her statements to him
had not been misleading.    The magistrate judge found O’Neil’s
accusations to be unfounded.   The record supports this finding
and there is therefore no reason to disturb the magistrate
judge’s credibility determination.    See Columbus-Am. Discovery
Group v. Atl. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995)
(“Absent extraordinary circumstances, we will not disturb a
fact-finder’s credibility determinations.”). Therefore, for our
purposes, O’Neil did not successfully establish that he was
misled by his counsel.


                                       15
belief that [his] actions were lawful[;] [he] must show that

such a belief would translate into a credible assertion of legal

innocence.”         Sparks,     67   F.3d    at    1153.      Here,      O’Neil    never

explained his assertion of innocence, much less established that

his belief of innocence was legally justified.                        A defendant’s

bare allegation of innocence does not, without more, satisfy the

second Moore factor.            See United States v. Cray, 47 F.3d 1203,

1209 (D.C. Cir. 1995) (“A defendant appealing the denial of his

motion to withdraw a guilty plea . . . must do more than make a

general denial [of guilt].”).               We thus find that O’Neil has not

satisfied the second Moore factor.

      With regard to the fourth Moore factor, O’Neil must show:

“(1) that his counsel’s performance ‘fell below an objective

standard     of    reasonableness’          and    (2)     that    ‘there       [was]   a

reasonable probability that, but for counsel’s error, he would

not have pleaded guilty and would have insisted on going to

trial.’”     United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.

1989)    (quoting       Hill    v.   Lockhart,      474     U.S.   52,     57    (1985))

(alteration in original).              As explained above, O’Neil showed

neither.          The    magistrate     judge       found    O’Neil’s       complaints

regarding counsel to be baseless and found that counsel more

than adequately represented him.                  There is no other evidence in

the     record    that    his    counsel’s        performance      “fell    below       an



                                            16
objective standard of reasonableness” or that she misled him

into pleading guilty.       Bowman, 348 F.3d at 416.

     In sum, O’Neil did not successfully establish any of the

Moore   factors    or    show   any   “fair     and   just”   reason    for     the

withdrawal of his plea before the magistrate judge or before the

district court.         We thus find that the district court did not

err in denying O’Neil’s motion to withdraw his guilty plea.



                                      III.

    Accordingly, for the reasons set forth above, we affirm the

district court’s opinion overturning the magistrate judge’s sua

sponte vacatur of the guilty plea, its finding that the Rule 11

proceeding   was   proper,      and   its    denial   of   O’Neil’s    motion   to

withdraw the plea.

                                                                        AFFIRMED




                                       17
