UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4585

DARYL ANDRE FULLER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-98-76)

Argued: January 28, 2000

Decided: March 17, 2000

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Motz concurred
in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Parks Nolan Small, Federal Public Defender, Columbia,
South Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Greenville, South Carolina, for Appellee. ON
BRIEF: J. Rene Josey, United States Attorney, Greenville, South
Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Daryl Fuller appeals his conviction and sentence, following a guilty
plea, of possession with intent to distribute crack cocaine within one
thousand feet of a housing facility owned by a public housing author-
ity, in violation of 21 U.S.C.A. § 860(a) (West 1999). He argues that
no evidence was presented that he had the intent to distribute, and that
the district court therefore abused its discretion by failing to establish
a factual basis for his guilty plea and then refusing to grant his motion
to withdraw his plea. In regard to his sentence, he argues that the dis-
trict court abused its discretion, both in deciding to depart upward and
in the extent of the departure it made. Because we find that the district
court did establish a factual basis for the guilty plea, that Fuller did
not present a fair and just reason for withdrawing his plea, and that
the district court did not abuse its discretion in either its decision to
make an upward departure or the extent of the departure, we affirm
Fuller's conviction and sentence.

I.

On January 27, 1998,1 Daryl Fuller was indicted for possession
with intent to distribute crack cocaine within one thousand feet of a
housing facility owned by a public housing authority.2 On February
27, he pleaded guilty to the charge at a Rule 11 guilty-plea hearing
conducted by the district court. At the hearing, the district court accu-
rately informed Fuller of the elements of the offense with which he
was charged, including the element of intent to distribute. The court
asked Fuller if he understood the elements of the offense; Fuller
replied that he did.
_________________________________________________________________
1 Unless otherwise indicated, all dates are in 1998.
2 The indictment also charged Fuller with a count of possession of mar-
ijuana in violation of 21 U.S.C.A. § 844(a) (West 1999). This count was
dismissed as part of his plea agreement.

                     2
At the district court's request, the Government provided the follow-
ing factual summary of the evidence surrounding the charged offense:

          On July the 8th, 1997, officers observed Mr. Fuller to be
          doing what apparently was rolling a marijuana cigarette. He
          also had a plastic baggy which he threw from the car. The
          officers stopped Mr. Fuller, searched him and found approx-
          imately one point zero grams of crack on him in Spartan-
          burg, Your Honor.

(J.A. at 62.)3 The court asked Fuller if he agreed with the summary,
and Fuller said that he did.

The court then specifically asked Fuller if he "knowingly, inten-
tionally and unlawfully possess[ed] with intent to distribute crack
cocaine within one thousand feet of a public housing authority." (J.A.
at 62.) After a brief pause in the proceedings during which Fuller
apparently asked his attorney a question, Fuller's attorney explained
that his client had asked him for some "clarification as to how much
a thousand feet was." (J.A. at 62.) The court then engaged Fuller in
the following colloquy:

          THE COURT: Let me ask you again. Did you, Mr. Fuller,
          on or about July 8, 1997, in the District of South Carolina,
          knowingly, intentionally and unlawfully possess with intent
          to distribute a quantity of crack cocaine within one thousand
          feet of a public housing authority?

          DEFENDANT FULLER: Yes, Your Honor.

          THE COURT: And are you guilty of count one of the
          indictment?

        DEFENDANT FULLER: Yes, Your Honor.
_________________________________________________________________

3 According to Fuller's presentence report (PSR), the exact amount of
crack found on Fuller was .55 grams, and it was that amount the PSR
used to calculate his offense level. In any event, the exact amount of
crack found on Fuller is irrelevant to the issues Fuller raises on appeal.

                     3
(J.A. at 62-63.) The district court then allowed Fuller to sign his
guilty plea.

On July 29, the district court conducted Fuller's sentencing hear-
ing. At that hearing, Fuller expressed dissatisfaction with his plea,
stating that he should have only been charged with simple possession,
not possession with intent to distribute. He claimed that he thought
that he had pleaded only to a simple possession charge. He then asked
that he be allowed to plead to simple possession. The district court
treated this request as a motion to withdraw the guilty plea and denied
the motion on the grounds that, at the time of the plea during the Rule
11 hearing, the court thoroughly reviewed with Fuller the elements of
the offense and informed him of the factual basis for his plea, Fuller
evidenced an understanding of both the elements of the offense and
the factual basis for the plea, and Fuller "freely, understandingly and
knowingly entered" the plea. (J.A. at 71.)

The court then proceeded to the issue of sentencing. Fuller's pre-
sentence report (PSR), to which Fuller expressed no objections after
telling the court that he had thoroughly reviewed it with his attorney,
recommended a total offense level of 15, and a total criminal history
category of VI, for a guideline sentencing range of forty-one to fifty-
one months. Over two weeks prior to the sentencing hearing, the Gov-
ernment made a motion for upward departure from the range sug-
gested by the PSR. During its argument in support of its motion for
upward departure, the Government noted that Fuller had nineteen
convictions resulting in sixty-six criminal history points. The district
court decided that upward departure would be appropriate in this case,
noting that Fuller's "sixty-six points just do not at all adequately
reflect the seriousness of his past criminal conduct," (J.A. at 77), and
that Fuller was a recidivist who, based upon his past history, was
likely to commit more crimes as soon as he was released from prison.
The district court departed upward to an offense level of 30 within
Criminal History Category VI for a resulting guideline sentencing
range of 168-210 months. The court then sentenced Fuller to a term
of two hundred months imprisonment.

II.

We first address Fuller's argument that the district court failed to
establish a factual basis for his guilty plea as required by Rule 11(f)

                     4
of the Federal Rules of Criminal Procedure. Specifically, Fuller con-
tends that the district court did not find a sufficient factual basis for
the element of intent to distribute.

Rule 11(f) states: "Notwithstanding 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." This Court has explained exactly what a district court must
do in order to comply with Rule 11(f):

          In order to comply with Rule 11(f), a district court need not
          replicate the trial that the parties sought to avoid. Rather, 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. The district court pos-
          sesses wide discretion in determining whether a sufficient
          factual basis exists, and its acceptance of a guilty plea will
          be reversed only for an abuse of that discretion. And, if the
          evidence presented is sufficient to demonstrate that the
          defendant committed the elements of the charged offense,
          acceptance of the plea clearly does not constitute an abuse
          of discretion.

United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997) (internal
citations omitted). Moreover, a district court may find the factual
basis for the plea "from anything that appears on the record." See
United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).

Fuller focuses on the statement of facts that the Government pre-
sented at his Rule 11 hearing, noting that nothing in that statement
refers to the element of intent to distribute. As the Government con-
ceded at oral argument, this assessment of the statement is certainly
correct. The district court, however, had more than that statement on
which to rely in establishing a factual basis for the plea. As noted
above, Fuller admitted, in open court, that he intended to distribute
the crack cocaine that he possessed. The district court asked him if he
"knowingly, intentionally and unlawfully possess[ed] with intent to
distribute a quantity of crack cocaine within one thousand feet of a
public housing authority." (J.A. at 62-63.) After conferring with his
attorney on the question of "how much a thousand feet was," (J.A. at

                     5
62), the court repeated the question, and Fuller answered "yes," (J.A.
at 63). This admission of intent to distribute, made in open court and
in direct response to the district court's twice-asked question of
whether he possessed such intent, constitutes a sufficient factual basis
for the element of intent to distribute.

This is certainly not the first time that we have held that a defen-
dant's admission to the elements of an offense can constitute a suffi-
cient factual basis for his guilty plea. In DeFusco, the defendant
argued that there was no factual basis for his plea to the charge of
concealing his assets in bankruptcy because he never admitted to pos-
sessing the "requisite knowledge for concealing his assets in bank-
ruptcy." DeFusco, 949 F.2d at 120. In rejecting DeFusco's argument,
we noted that he had signed a statement of facts setting forth his "ad-
mission that he did `knowingly, intentionally and fraudulently conceal
assets from the Trustee of the Bankruptcy Court.'" Id. This admission
of the element of knowledge in a signed statement satisfied us that the
district court had established a factual basis for the guilty plea. See id.
We see no reason to distinguish between an admission of the element
of an offense in a signed statement and the admission of an element
in open court in response to a judge's question. We hold, therefore,
that the district court did not abuse its discretion in determining that
there was a sufficient factual basis for Fuller's guilty plea.

III.

Fuller's second argument is that the district court erred when it
denied his motion, made under Rule 32(e) of the Federal Rules of
Criminal Procedure, to withdraw his guilty plea. We review the dis-
trict court's refusal to allow Fuller to withdraw his plea for abuse of
discretion. See United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir.
1996). A defendant who wishes to withdraw his guilty plea must dem-
onstrate a "fair and just reason" for doing so. See United States v.
Sparks, 67 F.3d 1145, 1150 (4th Cir. 1995) (quoting Rule 32(e)). This
"fair and just reason" must "challenge[ ] either the fairness of the Rule
11 proceeding wherein the defendant tendered, and the court
accepted, the plea or the fulfillment of a promise or condition emanat-
ing from the proceeding." United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992). Finally, and most importantly, we have stated
that "the fairness of the Rule 11 proceeding is the key factor in the

                     6
review of the denial of a motion to withdraw a guilty plea, and that
an appropriately conducted Rule 11 proceeding raises a strong pre-
sumption that the plea is final and binding." Wilson, 81 F.3d at 1306.
Because we have just rejected Fuller's only challenge to the fairness
of the Rule 11 proceeding, we start with the presumption that his plea
was final and binding. Fuller builds his assertion that his plea was not
voluntary on the ground that the district court failed to establish a fac-
tual basis for his plea. In light of our conclusion that a factual basis
did exist for the plea, this assertion must fail, and we agree with the
district court's statement that the transcript of the Rule 11 hearing
indicates that the plea was "freely, understandingly and knowingly
entered." (J.A. at 71.) Fuller's assertions that he should have been
charged with simple possession, a claim undercut by our determina-
tion that a factual basis existed for the plea, and that he thought he
had pleaded only to simple possession, a claim properly rejected by
the district court based upon its review of the transcript of the Rule
11 hearing, fail to satisfy his burden. The district court, therefore, did
not abuse its discretion in determining that Fuller failed to overcome
the presumption created by a fairly conducted Rule 11 hearing and to
meet his burden of demonstrating a "fair and just reason" for with-
drawing his plea.4
_________________________________________________________________
4 In United States v. Moore , 931 F.2d 245 (4th Cir. 1991), this Court
devised a six-factor analysis for district courts to use in weighing their
decision to grant or deny a defendant's request to withdraw a guilty plea:

          (1) whether the defendant has offered credible evidence that his
          plea was not knowing or not voluntary, (2) whether the defen-
          dant 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.

Id. at 248. While the district court only expressly considered the first
Moore factor on the record, probably because Fuller's counsel failed to
make any arguments on the others, it is clear that Fuller did not meet his
burden of showing a fair and just reason for withdrawing his plea. More-
over, we have warned against viewing these factors as setting forth "a
rigidly mechanistic test, for the conspicuous fuzziness of Rule 32[(e)]'s
operative terms -- `fair and just' -- precludes such an endeavor." United

                    7
IV.

Fuller's final argument is that the district court abused its discre-
tion, both in deciding to depart upward from Criminal History Cate-
gory VI under § 4A1.3 of the United States Sentencing Guidelines
_________________________________________________________________
States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995) (referring to the text
of Rule 32(d), which is now found in subsection (e)). "Rather, Moore
articulated six considerations that should inform a district court's ines-
capably impressionistic judgment as to whether a defendant's reasons for
moving to withdraw her guilty plea are sufficient to satisfy the language
and purpose of Rule 32." Id.
In any event, it is readily apparent that the remaining Moore factors
plainly cut against Fuller. It does not appear that Fuller made a credible
assertion of legal innocence after he made his motion to withdraw the
plea. Fuller's attorney said that Fuller should have been charged with
simple possession as opposed to possession with intent to distribute.
Then Fuller explained why he wanted to withdraw his plea: "I want to
plead guilty to simple possession because that's what I thought I was
pleading guilty to." (J.A. at 70-71.) Not only does this statement conflict
with his earlier statements at the Rule 11 hearing, but it also does not
come close to being an assertion -- credible or not -- of legal innocence.
Also, there was certainly a lengthy delay here between the entry of the
plea and the entry of the motion to withdraw it. The plea was entered on
February 27, and the sentencing hearing at which Fuller's motion to
withdraw the plea was both made and denied took place on July 29. Ful-
ler makes no attempt to account for this delay, other than to note that at
his guilty-plea hearing, the district court made a general statement to the
crowd of attorneys in the courtroom waiting to enter pleas for their cli-
ents that there had been a problem with defense attorneys and the quality
and timeliness of their representation. This general statement, which was
not directed at any one attorney, has absolutely no relevance to the filing
of a motion that occurred after the hearing. Fuller also offers no argu-
ment as to how his counsel was ineffective at the Rule 11 hearing.
Indeed, at that hearing, Fuller expressly stated that he was satisfied with
the representation provided by his attorney. See United States v. Craig,
985 F.2d 175, 179 (4th Cir. 1993) (stating that, when a defendant at a
Rule 11 hearing indicates that he is satisfied with the services of his
attorney, and the district court has found that the entry of the plea was
knowing and voluntary, a "formidable barrier" is raised to our finding of
an abuse of discretion in a district court's refusal to allow a defendant to

                  8
and in making what he calls an unreasonably high upward departure.
Finding no reversible error, we affirm Fuller's sentence.

We review a district court's decision to depart from the Sentencing
Guidelines for abuse of discretion. See Koon v. United States, 518
U.S. 81, 100 (1996). A district court may depart from a guideline
range if it identifies a factor that is an encouraged basis for departure
and is not taken into account by the applicable guideline. See United
States v. Brock, 108 F.3d 31, 34 (4th Cir. 1997). Under U.S.S.G.
§ 4A1.3, an inadequate criminal history category is an encouraged
ground for upward departure.5See U.S.S.G. § 4A1.3 (1998). This pro-
vision allows a district court to depart from the otherwise applicable
guideline range when the defendant's criminal history category under-
represents his past criminal conduct and the likelihood that he will
commit future crimes. See id. We review a challenge to the extent of
a district court's departure also for abuse of discretion. See United
States v. Bailey, 112 F.3d 758, 771 (4th Cir. 1997).

"Where a district court chooses to depart pursuant to section 4A1.3,
it must . . . provide a short clear written statement or a reasoned state-
ment from the bench to support its departure." United States v.
Rusher, 966 F.2d 868, 882 (4th Cir. 1992) (internal quotation marks
omitted). "[T]he court may determine the extent of a departure by
extrapolating from the existing sentencing table." United States v.
Cash, 983 F.2d 558, 561 (4th Cir. 1992). In the course of conducting
this extrapolation, "[a]dditional Criminal History Categories above
Category VI may be formulated in order to craft a departure that cor-
responds to the existing structure of the guidelines." Id. We have
_________________________________________________________________

withdraw his guilty plea). Because the first four Moore factors do not aid
Fuller, the final two can be of no help. See Sparks, 67 F.3d at 1154 (stat-
ing that, by themselves, very slight prejudice and inconvenience to the
Government cannot constitute a fair and just reason to grant a motion to
withdraw a guilty plea).
5 Quite obviously, an inadequate criminal history category is not taken
into account by U.S.S.G. § 2D1.2 (Drug Offenses Occurring Near Pro-
tected Locations or Involving Underage or Pregnant Individuals; Attempt
or Conspiracy), the guideline used to calculate Fuller's pre-departure
offense level.

                    9
stated that, as a practical matter, upward departure from Category VI
can be achieved by "moving vertically to successively higher offense
levels in Category VI." Id. at 561 n.6."In determining the extent of
a departure based on inadequacy of criminal history above Criminal
History Category VI, the court should move to successively higher
categories only upon finding that the prior category does not provide
a sentence that adequately reflects the seriousness of the defendant's
criminal conduct." Id. at 561.6

Fuller first attacks the district court's decision to make an upward
departure, contending that a departure should not have been made
under § 4A1.3 on the ground that most of his past crimes involved
"minor," nonviolent conduct. We cannot say that the district court's
decision to depart was an abuse of discretion. That decision was based
not only upon Fuller's extraordinary number of criminal history
points -- sixty-six -- but also upon the district court's lengthy review
of Fuller's criminal history and pattern of recidivism, which culmi-
nated in the district court's well-supported finding that "Fuller has
repeatedly committed new offenses after being released or with[in]
the expiration of an imposed custody sentence." (J.A. at 77.) A char-
acterization of Fuller's past criminal conduct as involving mostly
"minor" offenses is certainly a dubious one, given that some of his
convictions were for the crimes of first-degree burglary, grand lar-
ceny, forgery, store-breaking, malicious injury to real property, and
resisting arrest. Moreover, we note that § 4A1.3 does not state or sug-
gest that prior criminal conduct has to be violent in order for a depar-
ture to be made under that section. Indeed, § 4A1.3 specifically lists
_________________________________________________________________
6 In United States v. Rusher , 966 F.2d 868 (4th Cir. 1992), this Court
first instructed district courts that, in departing upward for inadequacy of
criminal history, they should depart "first to the next higher category and
. . . move on to a still higher category only upon a finding that the next
higher category fails adequately to reflect the seriousness of the defen-
dant's record." Id. at 884. Although we later acknowledged that this
instruction was dicta, we stated that "we believe that it identifies the
proper approach to be taken." United States v. Cash, 983 F.2d 558, 561
n.7 (4th Cir. 1992). We have continued to prescribe this approach in sub-
sequent opinions. See, e.g., United States v. Lawrence, 161 F.3d 250, 256
(4th Cir. 1998), cert. denied, 119 S. Ct. 1279 (1999); United States v.
Harrison, 58 F.3d 115, 118 (4th Cir. 1995).

                    10
large-scale fraud, a nonviolent offense, as potentially supporting a
departure above Criminal History Category VI. See U.S.S.G. § 4A1.3.
In any event, because the district court seems to have focused primar-
ily upon the fact that Fuller's criminal history did not adequately
reflect the likelihood that Fuller would commit other crimes, any
assertion by Fuller that his past crimes were "minor" and nonviolent
is beside the point.7

Fuller also challenges the extent of the district court's departure,
contending that the departure was too severe because the district court
failed to consider whether each successively higher category above
Criminal History Category VI was inadequate to reflect the serious-
ness of his prior criminal conduct or the likelihood that he would
commit other crimes. We note that, in arriving at Fuller's post-
departure offense level of 30, the district court employed a mathemat-
ical formula to aid its extrapolation calculations. Apparently, the dis-
trict court took Fuller's total number of criminal history points (66),
subtracted the minimum number of points contained in Category VI
(13), and then divided the difference (53) by three 8 in order to create
seventeen more Criminal History categories -- categories that it
added to the original guideline range by moving vertically down the
table from offense level 15 (Fuller's PSR's recommended offense
level). Instead of moving to an offense level of 32, however, the dis-
trict court decided to stop at an offense level of 30. This decision indi-
cates that, while the district court used a formula to aid it in its
_________________________________________________________________
7 We note that the district court was clearly concerned about the nature
of Fuller's prior criminal conduct, most of which, according to the dis-
trict court, involved "continuously depriv[ing] individuals and the public
of their right to possess property." (J.A. at 80.) Therefore, contrary to
Fuller's assertion to the contrary, the district court did not disobey
§ 4A1.3's admonition that, "[i]n determining whether an upward depar-
ture from Criminal History Category VI is warranted, the court should
consider that the nature of the prior offenses rather than simply their
number is often more indicative of the seriousness of the defendant's
criminal record." See U.S.S.G. § 4A1.3.
8 It appears that the district court divided by three because three points
is the range found in the three criminal history categories that precede
Criminal History Category VI. See U.S.S.G.§ 5A (1998). Criminal His-
tory Category VI states that it is for defendants with "13 or more" points.
See id.

                    11
attempt to structure a suitable upward departure, it did not neglect the
task of considering the inadequacy of each offense level between 15
and 30. Indeed, the district court specifically stated that an offense
level of 16 would be inadequate. It then stated that an offense level
of 17 would be inadequate. It then stated that the remaining offense
levels would be inadequate as well. These statements satisfy us that,
in accordance with Cash, the district court considered each successive
offense level and found it to be inadequate before moving to the next
one.9 The district court, therefore, did not abuse its discretion in the
extent of its upward departure.

V.

For the foregoing reasons, we affirm Fuller's conviction and sen-
tence.

AFFIRMED
_________________________________________________________________

9 Fuller also asserts that the district court's employment of a mathemat-
ical formula, in which he claims that all of his criminal history points
were treated equally, is further evidence that the district court ignored
§ 4A1.3's admonition that, "[i]n determining whether an upward depar-
ture from Criminal History Category VI is warranted, the court should
consider that the nature of the prior offenses rather than simply their
number is often more indicative of the seriousness of the defendant's
criminal record." As noted above, if the district court had truly employed
a purely mechanical approach in which all of Fuller's criminal history
points were treated equally, Fuller's post-departure offense level would
have been 32 rather than 30. This fact indicates that the district court was
doing more than simply considering the number of criminal history
points or offenses.




                    12
