                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4289


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TRACY MARK ANTHONY TUCKER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:09-cr-00298-HEH-1)


Submitted:   March 28, 2011                 Decided:   April 22, 2011


Before SHEDD, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Patrick L. Bryant,
Research   and  Writing   Attorney,  Richmond,   Virginia,  for
Appellant. Neil H. MacBride, United States Attorney, Michael R.
Gill, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tracy Tucker was charged with possession of a firearm

and ammunition by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1) (2006).        After the district court denied Tucker’s

motion to suppress evidence, Tucker pled guilty.                Approximately

two and one-half months later, he moved to withdraw his plea.

Following   a   hearing,     the   district    court   denied    the   motion.

After   another   hearing,     the   court    denied   Tucker’s    motion   to

reconsider the denial of the motion to withdraw.                  Tucker was

sentenced to sixty months in prison.             He now appeals, raising

two issues.     We affirm.



                                      I

            Tucker first contends that the district court erred

when it denied his motion to withdraw his guilty plea.                      We

review the denial of the motion for abuse of discretion.                United

States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007).                Withdrawal

of a guilty plea is not a matter of right. United States v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). The defendant bears

the burden of showing a “fair and just reason” for withdrawing

his plea.     Fed. R. Crim. P. 11(d)(2)(B).            To determine whether

the defendant has met his burden, courts look to 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

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     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.

            After carefully reviewing the record, we agree with

the district court that Tucker did not meet his burden.         First,

because there was substantial compliance with Fed. R. Civ. P.

11, * there is a strong presumption that Tucker’s plea is valid.

See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992)

(“[A]n appropriately conducted Rule 11 proceeding . . . raise[s]

a strong presumption that the plea is final and binding.”).

            Additionally, the six factors identified in Ubakanma

weigh heavily against Tucker.     He repeatedly assured the court

at the Rule 11 proceeding that he was fully satisfied with his

counsel’s representation, he wished to plead guilty because he

was guilty, no one had forced or threatened him to plead guilty,

and he was pleading guilty of his own free will and not because

of   any   outside   pressure.   His   unsupported   claim   that   his


     *
       The court did not inform Tucker, in accordance with Rule
11(b)(1)(A), that the Government had the right to prosecute
Tucker for any perjury committed at the hearing.    This was the
only flaw in the proceedings, which otherwise complied with Rule
11.




                                  3
attorney or the court pressured him to plead guilty and that he

did not understand the Rule 11 hearing is at odds with his

solemn     declarations,       under      oath,    to       the    contrary      at    that

hearing.      See Blackledge v. Allison, 434 U.S. 63, 64 (1977)

(statements       at   plea    colloquy    “carry       a   strong    presumption        of

verity”).

            Further, Tucker has never credibly asserted his legal

innocence.     Indeed, it would be almost impossible for him to do

so, given his incriminating statements at the time the search

warrant was executed, his admission of guilt at the Rule 11

hearing,    and    his   statements       to     his    probation     officer         during

preparation of the presentence investigation report.                            The more-

than-two-month delay in moving to withdraw the plea also weighs

against Tucker.

            Despite      his     claims     to    the       contrary,     the     record,

including    Tucker’s     sworn    statements          at    the   Rule    11    hearing,

shows that he worked closely with his attorney.                           Additionally,

as the district court stated, the court’s resources would be

stretched if the matter went to trial.

            Five of the six factors thus weigh against permitting

withdrawal of the plea.             The sixth factor — prejudice to the

Government — weighs in Tucker’s favor: the Government candidly

admitted that it would not be unduly prejudiced if the case were



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tried.      We conclude that the district court did not abuse its

discretion in denying the motion to withdraw the guilty plea.



                                            II

            We      next     consider    Tucker’s       argument      that       his    sixty-

month    sentence       is     unreasonable       because      it     is    greater       than

necessary to accomplish the purposes of sentencing.                               According

to Tucker’s presentence investigation report (PSR), his offense

level    was      20.          See   U.S.        Sentencing         Guidelines          Manual

§ 2K2.1(a)(4)(A)           (2009).       Two      levels       were       subtracted      for

acceptance     of    responsibility.             See    USSG   § 3E1.1.           His    total

offense level was 18, his criminal history category was III, and

his advisory Guidelines range was 33-41 months.

            At sentencing, Tucker had no objections to the report.

The United States argued that, in light of Tucker’s attempts to

withdraw    his      guilty     plea,    the     adjustment         for    acceptance      of

responsibility was improper.                The court agreed that Tucker was

ineligible     for      the    two-level    reduction.          Therefore,         Tucker’s

offense level was 20, and his advisory Guidelines range rose to

41-51 months.

            The      court     determined       after    argument         that    an    upward

departure was warranted because Tucker’s criminal history score

significantly       under-represented           his    criminal       background.          The

court    observed       that    Tucker   had      received      no    criminal         history

                                            5
points for offenses, including use of a firearm and attempted

murder,    committed       when    he    was    a    juvenile.        Nor    did        Tucker’s

criminal    history     score      reflect      that      his       parole       from    a    1990

murder     conviction        was    revoked         in    1994.         The        court       was

particularly        concerned       by    Tucker’s          pattern         of     committing

offenses involving firearms.               The court determined that a one-

level    upward     departure      to    criminal        history       category          IV    was

appropriate.        Accordingly,         Tucker’s        advisory      Guidelines            range

became 51-61 months.              The court stated that a sentence within

this range would be adequate but not longer than necessary to

satisfy the purposes of sentencing.

               Following     argument,     the      court      imposed       a    sixty-month

sentence. The court stated that it had considered the Guidelines

and the 18 U.S.C. § 3553(a) (2006) factors.                          The court referred

to Tucker’s past involvement in violent behavior and stated that

the sentence selected would promote respect for the law, protect

the community, and deter future criminal behavior.

               “[A]ny sentence, within or outside of the Guidelines

range,    as    a   result    of    a    departure        or    a    variance,          must    be

reviewed by appellate courts for reasonableness pursuant to an

abuse of discretion standard.”                  United States v. Diosdado-Star,

630 F.3d 359, 365 (4th Cir. 2011); see also Gall v. United

States, 552 U.S. 38, 46 (2007); Rita v. United States, 551 U.S.

338, 354-55 (2007).           In conducting our review, we first examine

                                            6
the   sentence         for     “significant      procedural       error,”     including

“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence—including            an   explanation       for   any   deviation    from    the

Guidelines range.”             Gall, 552 U.S. at 51.             With respect to the

explanation       of    the    sentence,    we    have     stated,    “Regardless      of

whether the district court imposes an above, below, or within-

Guidelines        sentence,         it   must     place      on      the    record     an

individualized assessment based on the particular facts of the

case.”    United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (internal quotation marks omitted).

             If    we        conclude    that    a     sentence      is    procedurally

reasonable, we then consider the substantive reasonableness of

the sentence.            United States v. Lynn, 592 F.3d 572, 575 (4th

Cir. 2010).        At this stage, we “take into account the totality

of the circumstances, including the extent of any variance from

the Guidelines range.”              Gall, 552 U.S. at 51.            “[T]he method by

which the district court deviates from the Guidelines range does

not alter (1) the review in which the courts of appeals must

engage,     or    (2)        the   justification       the   district       court    must

provide.”     Diosdado-Star, 630 F.3d at 365.



                                            7
          We     hold   that     Tucker’s      sixty-month   sentence    is

procedurally and substantively reasonable.            The district court

accurately    calculated   Tucker’s    advisory    Guidelines   range,   and

the court considered both the § 3553(a) sentencing factors and

the   parties’   positions     on   sentencing.      Further,   the   court

adequately explained its reasons for the departure sentence.



                                     III

             We accordingly affirm.        We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                  AFFIRMED




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