                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4865


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ALBERT EDGERTON,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00271-BR-1)


Argued:   October 27, 2010                 Decided:   January 21, 2011


Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Damon J.
KEITH, Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina, for Appellant.    Seth Morgan Wood,
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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       On June 1, 2009, in the Eastern District of North Carolina,

Appellant    Albert     Edgerton     entered     a   plea      of   guilty    to    three

counts (One, Two, and Five) of a superseding indictment filed

against him.        Edgerton filed a motion to withdraw his plea of

guilty on July 21, 2009 and asserted that he was out of his

right    mind,   that    he   was       pressured    to    plead     guilty    by    his

attorney, and that he was innocent.                  The district court denied

Edgerton’s motion to withdraw, having found that his plea was

entered knowingly and voluntarily and that no reason existed

permitting withdrawal.         The district court sentenced Edgerton to

a term of imprisonment of 229 months.

       On appeal, Appellant contends that the district court erred

in accepting his guilty plea.                  Appellant specifically asserts

that no sufficient factual basis existed to support his plea of

guilty to Count Five of the superseding indictment since the

plea    agreement     referred      to    possession      of    crack   rather      than

possession    of    marijuana      as    set   forth      in   Count    Five   of     the

superseding      indictment.            Appellant    also      contends      that     the

district court abused its discretion in denying his motion to

withdraw his plea of guilty.               We affirm.




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                                    I. BACKGROUND

      Beginning in March 2007, Warren County, North Carolina law

enforcement officers employed a confidential informant to make

controlled purchases of narcotics.                 Joint Appendix (“J.A.”) 10;

Pl.   Br.   6.   Their    investigation         culminated      in    Edgerton      being

indicted (initially) on two counts of possession with intent to

distribute cocaine base (crack) on September 10, 2008 in the

Eastern     District     of   North    Carolina.      J.A.      10,    121.        Police

officers arrested Edgerton during a traffic stop on September

16, 2008 and searched his car (incident to his arrest).                               J.A.

121; Pl. Br. 6.          Police officers then took Edgerton to his home

and   searched    it     (with   his    consent).        J.A.   121;        Pl.    Br.   6.

Police officers recovered $5100 from his car and two firearms

from his home.        J.A. 121-22; Pr. Br. 6-7.             Police officers also

took Edgerton to his grandmother’s home where he stated that he

kept drug proceeds in a car. J.A. 121-22; Pr. Br. 6-7.                             Police

officers     found     marijuana       in   a    white     Mazda,      and        $34,000,

ammunition and four firearms in a different car, a Chevrolet

Cavalier, which belonged to Edgerton’s father.                       J.A. 121-22; Pl.

Br. 6-7.

      A Superseding Indictment was returned by a grand jury on

November 19, 2008, including five counts against Edgerton.                            J.A.

12-15.       Counts    One    and     Two   were    the    same       two    counts      of

possession with intent to distribute cocaine base as set forth

                                            3
in the initial indictment against him.                               J.A. 10, 12-15. The

marijuana      found       in    the     Mazda       in     the       search        incident      to

Edgerton’s        arrest    formed       the    basis          for    Count    Three       of    the

superseding        indictment,         possession         with       intent    to     distribute

marijuana.          J.A.    12-13;       Pl.    Br.       6-7.        Count        Four    of     the

Superseding Indictment alleged that Edgerton knowingly possessed

several firearms, including the two found at his home and those

recovered      from       the    Cavalier       on    his       grandmother’s            property,

unlawfully as a convicted felon.                          J.A. 13; Pl. Br. 6-7. The

firearms and ammunition recovered from the Cavalier formed the

basis    for      Count    Five     of    the       Superseding         Indictment,             which

alleged that Edgerton possessed said firearms in furtherance of

drug    trafficking,            specifically,         possession             with    intent       to

distribute        marijuana,       as    set     forth         in    Count     Three       of    the

superseding indictment.             J.A. 13; Pl. Br. 6-7.

       On   June    1,     2009,    Edgerton         appeared         before       the    district

court to enter a plea of guilty to Counts One, Two, and Five of

the superseding indictment.                    J.A. 18-38.             The district court

recessed     to    permit       Edgerton       time       to    review       the     superseding

indictment and to ensure that he had an understanding of the

charges against him.             J.A. 28-29.          Following recess, Defendant’s

counsel addressed in open court Edgerton’s concern that Counts

Three, Four, and Five in the superseding indictment stated that

the    offenses     occurred       on    September             17,    2008    as     opposed      to

                                                4
September     16,    2008     when    he       was   arrested.            J.A.   30-31.

Edgerton’s counsel noted that the usage of the phrase “on or

about”     immediately       preceding      the      date    provided       sufficient

specificity     to     support       the       charges      in      the    superseding

indictment.     Id.      Neither Edgerton nor his counsel brought to

the district court’s attention the fact that the plea agreement

erroneously described the firearms crime in Count Five of the

superseding indictment as carrying of firearms in furtherance of

possession with intent to distribute 5 grams or more of cocaine

base (crack) instead of possession with the intent to distribute

marijuana.

     During the plea colloquy, the district court judge asked

Edgerton if he understood his rights, and if he had read and

understood the plea agreement.                 J.A. 31-34.         Edgerton answered

affirmatively to each of those questions.                    Id.     Edgerton stated

that he was not threatened or forced to enter into the plea

agreement,    that    he     had     no    questions        about    the    sentencing

guidelines, that his counsel exercised professional judgment in

forecasting his potential sentence, that he was satisfied with

the services his counsel rendered to him, and that he had no

questions.     J.A. 31-38.         Pursuant to the plea agreement, Counts

Three and Four were to be dismissed.                 J.A. 34, 38, 40, 45.             The

district    court    judge    read    Counts      One,   Two,       and   Five   of   the

superseding indictment aloud and Edgerton indicated his guilt as

                                           5
to each charge.             J.A. 34-38.           The court accepted Edgerton’s

plea of guilty, having found that the plea was entered freely

and voluntarily.        J.A. 38.

       Edgerton filed a motion to withdraw his plea of guilty on

July 21, 2009, contending that his counsel forced him to plead

guilty against his will, that his counsel refused to investigate

the   facts    of     his    case     or   obtain    an    expert   witness    despite

Edgerton’s purported desire to go to trial, and that he was

innocent of the charges to which he pled guilty.                         J.A. 48-57.

The district court held a hearing, during which time Edgerton

stated that he pled guilty because he didn’t know what he was

doing, was losing his mind, and was pressured by his counsel.

The district court judge found that Edgerton’s plea of guilty

was entered knowingly and voluntarily and that no reason existed

to    permit    withdrawal.           J.A.    71,    73.      The   district    court

sentenced      Edgerton      to   a   term   of     imprisonment    of   229   months.

J.A. 106, 110-11.



                II.    ADEQUATE BASIS FOR ENTRY OF GUILTY PLEA

                                  A. Standard of Review

       Generally, the adequacy of a guilty plea is reviewed in the

Rule 11 context for harmless error.                   United States v. Goins, 51

F.3d 400 (4th Cir. 1995).                  Conversely, where an error is not

preserved before the district court by noting a specific Rule 11

                                             6
error, such as one occurring during a plea colloquy, plain error

review applies.        United States v. Martinez, 277 F.3d 517, 524-27

(4th Cir. 2002); see United States v. Massenburg, 564 F.3d 337,

341-42 (4th Cir. 2009).            Edgerton filed a motion to withdraw his

plea of guilty, but the motion did not specifically contend that

a specific Rule 11 error occurred during the plea colloquy and

Edgerton     did     not   argue    before     the   district   court       that    an

insufficient factual basis existed to support his guilty plea.

Accordingly, plain error review applies to his claim that no

sufficient factual basis existed to support his plea of guilty

to   Count   Five     of   the   superseding     indictment     since       the    plea

agreement referred to the use of firearms in furtherance of the

criminal offense of possession with intent to distribute crack

rather     than    marijuana,       as   set    forth    in   Count     5    of     the

superseding indictment.

      To establish plain error, the defendant must show that
      there is (1) error, (2) that is plain, and (3) that
      affects substantial rights.     If all three conditions
      are met, an appellate court may then exercise its
      discretion to notice a forfeited error, but only if
      (4)   the  error   seriously   affects   the  fairness,
      integrity,   or   public     reputation   of   judicial
      proceedings.

Johnson v. United States, 520 U.S. 461, 467 (1997) (internal

citations omitted).

      “Federal Rule of Criminal Procedure 11(b)(3) requires the

district     court    to   determine     whether     a   factual   basis      exists


                                          7
before entering judgment on a guilty plea.” United States v.

Ketchum, 550 F.3d 363, 366 (4th Cir. 2008).                                        “[T]he district

court       ‘possesses         wide     discretion,’             and     it        ‘need    only     be

subjectively satisfied that there is a sufficient factual basis

for     a    conclusion         that    the    defendant           committed          all    of     the

elements         of    the    offense.’”            Id.       (quoting       United        States    v.

Mitchell, 104 F.3d 649, 652 (4th Cir. 1997)).                                  A district court

judge “taking a defendant’s plea . . . need not . . . explain

the elements of each charge to the defendant on the record.”

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005).



                                             B. Analysis

        Finding        impermissible         Rule        11    error,        the    United    States

Court       of     Appeals     for     the    Sixth        Circuit       recently          vacated    a

defendant’s conviction for firearm possession in furtherance of

drug trafficking and discussed the factual basis necessary to

uphold a conviction under 18 U.S.C. § 924(c).                                  United States v.

Maye, 582 F.3d 622, 627-31 (6th Cir. 2009).                                   The Sixth Circuit

found       that      the    district    court          judge,    the    defendant,          and    the

defendant’s           counsel     each       were       confused        as    to     what    conduct

sufficiently established a § 924(c) offense.                                   Id. at 627.           At

his   sentencing            hearing,     the    defendant          expressed          concern       and

confusion about the § 924(c) offense.                                  Id. at 627-28.               The

defendant’s counsel explained to the court that his client was

                                                    8
still    concerned     following       the    court’s    provision      of    time    for

counsel to explain the nature of the charge and its elements.

Id. at 628.         The district court judge then read the indictment

aloud, the defendant stated that he was guilty of the charged

offense and that he understood why, the district court judge

invited the defendant to explain it before the court, and the

defendant stated that he was guilty because he “just had the gun

period, point blank” in his apartment when the cocaine sale took

place on his front porch.              Id. at 628-29 (emphasis in original).

The district court then proceeded to sentence the defendant.

The     defendant     appealed    his       sentence     to    the   Sixth     Circuit,

contending     that    the   district        court   erred     in    finding       that   a

factual basis existed to support his plea of guilty, asserting

that     his   admission     that      he    possessed    a    revolver       in    close

proximity to his drug transaction was insufficient.                         Id. at 627-

28.

       The Sixth Circuit noted that “coincidental presence of a

firearm in the vicinity of a crime is insufficient to support a

section    924(c)     conviction”        since   such     a    pronouncement        falls

short of the statutory requirement that the firearm be possessed

“‘in furtherance’” of drug trafficking or “possessed to advance

or promote the commission of the underlying [drug-trafficking]

offense.”      Id. at 630-31.          The court noted that the firearm was

not    brandished     during     the    crime,   the     gun   may    not    have    been

                                             9
loaded     or    easily        visible          to     the   informant,             and    was    not

sufficiently established as a “tool of [the defendant’s] trade.”

Id. at 631 n.3.           Accordingly, the Sixth Circuit found that it

was unclear that the defendant understood the elements of the

charged crime and that plain error had occurred, such that the

court remanded the case to provide for a new plea hearing.                                        Id.

at 630.

       Edgerton       contends       that       application         of    Maye       compels      this

Court to conclude that Rule 11 error occurred such that the four

firearms described in Count Five of the superseding indictment

were not possessed by him “in furtherance of” a drug trafficking

activity, that he never admitted to specifically possessing the

four     firearms       described         in     Count       Five    of        the    superseding

indictment,       and     that       no        sufficient      basis          existed      for    the

district court to accept his plea of guilty to Count Five.

       The plea colloquy plainly demonstrates that notwithstanding

a   scrivener’s       error     in    the        plea     agreement       delineating            crack

cocaine    rather       than    marijuana            as   charged        in    the    superseding

indictment, the district court judge twice accurately discussed

the nature of Count Five during the plea colloquy and Edgerton

affirmatively stated that he committed the offenses as stated by

the court. J.A. 29-37.               Maye is readily distinguishable from the

instant    case       since,     here,         neither       Edgerton         nor    his    counsel

expressed       any   confusion           as    to     the   nature       of    Count      Five    or

                                                  10
§ 924(c) which necessitated a recitation of the elements of the

offense.      Further, there was no erroneous legal pronouncement of

the   elements       of   Count    Five    or      any   other   allegation    of   the

superseding indictment which could provide Edgerton sufficient

basis   to    allege      confusion      as    to    the   elements   of   §   924(c).

Although it is the better practice to do so, the district court

judge   was    not    required      to    recite     the   elements   of   §   924(c).

Thus, the district court had a proper basis upon which to find

that Edgerton committed all of the elements of Count Five –

Edgerton admitted guilt following the district court’s reading

of    the    charges,      explanation          of   potential     punishment,      and

extensive colloquy.         Simply stated, no error occurred.



                     III. MOTION TO WITHDRAW PLEA OF GUILTY

                                  A. Standard of Review

      We review a district court’s denial of a motion to withdraw

a plea of guilty for abuse of discretion.                         United States v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).                          “A court has

abused its discretion if its decision ‘is guided by erroneous

legal principles’ or ‘rests upon a clearly erroneous factual

finding.’”      Brown v. Nucor Corp., 576 F.3d 149, 161 (4th Cir.

2009) (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261

(4th Cir. 1999)).



                                              11
                                      B. Analysis

      “There is no absolute right to withdraw a guilty plea.”

Ubakanma, 215 F.3d at 424.               The movant bears the burden of

showing   a    just     reason   for     withdrawal,      and    courts       consider

multiple factors including:

      (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.

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

      In Ubakanma, the defendant sought to withdraw his plea of

guilty to a wire fraud offense.                  Ubakanma, 215 F.3d at 424.

This Court found that the district court’s extensive Rule 11

hearing conducted prior to the district court’s acceptance of

the   defendant’s       plea     of    guilty     included      the     defendant’s

acknowledgement under oath that he was not coerced, that he was

guilty    of   the    specified       wire    fraud     offense,      and     that    he

understood the terms of his plea agreement.                   Id.     These factors

necessitated     that    this    Court    find    the    plea   was    knowing       and

voluntary.     Id.    Further,   this    Court    discarded      the    defendant’s

conclusory     assertion    of   innocence       and    his   claim    that    he    was

coerced by his attorney in light of his counsel’s aggressively


                                         12
negotiated, favorable plea agreement, and the defendant’s sworn

statements that he reviewed the plea agreement and voluntarily

agreed to its terms.          Id. at 424-25.          Accordingly, this Court

affirmed the district court’s denial of the defendant’s motion

to withdraw his plea of guilty.             Similarly, in Moore, this Court

affirmed the district court’s denial of the defendant’s motion

to withdraw a guilty plea where six weeks elapsed between the

filing of the motion and entry of the plea, nothing in the plea

agreement supported the defendant’s claim of unconscionability,

the    defendant   was      ably   represented       by   counsel,         and     minor

quibbles with the government’s version of events did not make

the defendant’s claim of innocence credible.                  Moore, 931 F.2d at

249-50.

       Edgerton contends that he was “not in his right mind,” that

he was pressured to plead guilty by his attorney throughout the

case, and that he is innocent.                J.A. 75.        The district court

found that his contentions lacked credibility since he stated

under oath during the plea colloquy that he was guilty.                              The

district court found that he did not appear to lack intelligence

and    he   appeared     well-informed.              Review        of     the     record

demonstrates that Edgerton was given additional time to review

the superseding indictment before the plea colloquy.                            J.A. 29.

When   Edgerton    argued    to    withdraw    his   plea     at    his    sentencing

hearing, he stated that he did not possess the four firearms

                                       13
taken from his father’s Cavalier and that he was forced to plead

guilty.        J.A. 29.      These statements do not erase his sworn

statements during the plea colloquy that he did possess the four

firearms in furtherance of drug trafficking, as charged in Count

Five of the superseding indictment, nor do they erase his sworn

assertion that no one threatened him or forced him to plead

guilty.       J.A. 33, 38.     Edgerton made sworn statements indicating

that he was not coerced to plead guilty, that he reviewed the

plea agreement with his counsel and understood its terms, that

he understood the charges in the superseding indictment and that

he committed the offenses charged in Counts One, Two, and Five.

J.A.    31-38.       Thus,     he    simply    cannot    meet   his    burden   to

demonstrate that his plea was not knowing and voluntary and that

he did not have close assistance of counsel or was threatened.

His belated claims of innocence simply are not credible. The

precedential cases Ubakanma and Moore, and the record, therefore

establish that no sufficient basis exists for this Court to find

that    the     district     court    abused    its     discretion    in   denying

Edgerton’s motion to withdraw his guilty plea.



                                    IV. CONCLUSION

       For the foregoing reasons, the judgment of the district

court is AFFIRMED.         There was both an adequate factual basis for

the district court’s acceptance of Edgerton’s plea of guilty and

                                          14
the district court properly denied Edgerton’s motion to withdraw

his plea of guilty.

                                                        AFFIRMED




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