                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4854


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

CLIFTON BARNES,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:05-cr-00256-FDW-1)


Submitted:   September 30, 2011             Decided:   October 26, 2011


Before WILKINSON, DAVIS, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR.,
Monroe, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Clifton    Barnes    appeals        from    his     conviction        and

resulting 262-month sentence after pleading guilty to possession

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

§ 922(g)    (2006),    and   possession     with       intent     to     distribute

cocaine base, in violation of 21 U.S.C. § 841(b)(1)(C) (2006).

(ER 212).      Barnes’ counsel has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), stating that in his

view, there are no meritorious issues, but raising the issue of

whether the district court erred in denying Barnes’ motion to

withdraw his guilty plea.         We conclude that the court did not

err in denying Barnes’ motion to withdraw as to the possession

with intent to distribute count, and affirm that conviction.                      We

reverse Barnes’ felon in possession of a firearm conviction, and

vacate   the   sentence   and   remand    for    resentencing       in    light   of

United States v. Simmons, 649 F.3d 237, 2011 WL 3607266                        (4th

Cir. Aug. 17, 2011).

            Barnes moved to withdraw his guilty plea after the

presentence report (PSR) was prepared showing that he qualified

as a career offender and citing the statutory maximum for the

possession with intent to distribute cocaine base count was life

imprisonment.         Because   of   an     error       in    the      superseding

indictment, which did not specify drug quantity, the statutory

maximum was reduced from life to thirty years.                  The court held a

                                     2
hearing on the motion to withdraw and denied the motion.                               Prior

to sentencing, the Government filed a “Notice of Intention to

Seek Enhanced Penalties Title 21 U.S.C. § 851” noting Barnes had

been previously convicted in 1995 and 2000 in North Carolina

state    court      of    felony    possession        of     cocaine      with   intent     to

sell/deliver cocaine.              These are the same convictions that were

relied on as predicate offenses for the felon in possession of a

firearm count and for the career offender Guideline.

               At sentencing, counsel filed a general objection to

the entire PSR, and the court permitted Barnes to discuss each

paragraph      to    which   he    objected.           Among      other    things,    Barnes

objected       to   the    use     of   the        North    Carolina      convictions       to

increase his sentence based on the career offender enhancement

because    the      sentences      he   received       were    not     more   than    twelve

months.        The court denied the objection.                     The court sentenced

Barnes to 120 months on the felon in possession of a firearm

count and 262 months for possession with intent to distribute

cocaine base, to be served concurrently.

               At the time of Barnes’ indictment and conviction, this

court    determined        whether      a    prior        conviction      qualified    as    a

felony for purposes of § 922(g)(1) by considering “the maximum

aggravated sentence that could be imposed for that crime upon a

defendant with the worst possible criminal history.”                                  United

States    v.    Harp,     406    F.3d       242,    246    (4th    Cir.    2005).      While

                                               3
Barnes’ appeal was pending, however, Harp was overruled by the

en banc decision in Simmons.          See Simmons, 2011 WL 3607266, at

*3.     Simmons   held   that   a   prior    North   Carolina   offense   was

punishable for a term exceeding one year only if the particular

defendant before the court had been eligible for such a sentence

under the applicable statutory scheme, taking into account his

criminal history and the nature of his offense.             Id. at *8; see

also N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009) (setting forth

North Carolina’s structured sentencing scheme).

           Under Simmons, it does not appear that Barnes’ prior

North    Carolina    convictions          were    crimes   punishable      by

imprisonment for terms exceeding one year for purposes of the

federal felon-in-possession statute.             We do not have the state

court record on appeal.         However, in light of Barnes’ 5-6 and

6-8 month sentences, under the North Carolina sentencing table,

it appears that Barnes could not have received a sentence of

more than twelve months.        See N.C. Gen. Stat. § 15A-1340.17(c),

(d).

           Accordingly, we vacate Barnes’ conviction and sentence

on the felon in possession of a firearm count and remand for

further proceedings.       Because these convictions served as the




                                      4
basis for the § 851 information and career offender status, 1 we

also vacate the sentence for the drug offense and remand for

resentencing.

               Barnes’ counsel questions whether the district court

abused its discretion in denying Barnes’ motion to withdraw his

guilty plea, but ultimately concludes that the court did not err

in denying the motion.              Barnes also raises this issue in his pro

se informal brief, arguing that he should have been permitted to

withdraw       his    plea    because      he       thought     he   would     be    able       to

challenge       the     motion       to    suppress           ruling     and        that    his

understanding was that he would not receive a sentence above 188

months.

               This   court     reviews       a     district     court’s      denial       of    a

motion    to    withdraw       a    guilty        plea   for    abuse    of    discretion.

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

“A defendant has no absolute right to withdraw a guilty plea.”

United    States      v.     Bowman,    348       F.3d   408,    413    (4th    Cir.       2003)

(internal quotation marks omitted).                      Once the district court has

accepted a defendant’s guilty plea, it is within the court’s

discretion whether to grant a motion to withdraw it.                                   United

States    v.    Battle,       499   F.3d     315,     319     (4th   Cir.     2007).         The


    1
       Barnes contested the applicability of the career offender
status in his pro se informal brief.



                                                5
defendant bears the burden of showing a “fair and just reason”

for withdrawing his guilty plea.                 Fed. R. Crim. P. 11(d)(2)(B);

Battle, 499 F.3d at 319.           “[A] ‘fair and just’ reason . . . is

one that essentially challenges . . . the fairness of the Rule

11 proceeding.”       United States v. Lambey, 974 F.2d 1389, 1394

(4th Cir. 1992).          “[R]eversal is warranted only if the plea

proceedings were marred by a fundamental defect that inherently

resulted in a complete miscarriage of justice, or in omissions

inconsistent      with    rudimentary           demands    of     fair     procedure.”

Ubakanma, 215 F.3d at 425.

           When    considering        whether      to     allow    a     defendant    to

withdraw     a   guilty    plea,      the   trial       court     must    conduct    the

six-factor analysis announced in United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991).                  Under Moore, a district court

considers:

      (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
      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.

           Although       all   the    factors      in    Moore    should    be     given

appropriate weight, the key to determining whether a motion to


                                            6
withdraw should be granted is whether the Rule 11 hearing was

properly conducted.             Bowman, 348 F.3d at 414; United States v.

Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).                         This court closely

scrutinizes        the    Rule     11     colloquy         and      attaches        a    strong

presumption that the plea is final and binding if the Rule 11

proceeding is adequate.           Lambey, 974 F.2d at 1394.

            Here, the district court substantially complied with

the   mandates       of   Rule    11    in    accepting          Barnes’        guilty       plea.

Therefore, the plea is presumed to be “final and binding.”                                     Id.

Moreover,    Barnes       has    failed      to    establish        the    existence         of    a

“fair and just” reason for withdrawing the plea.                                 See Fed. R.

Crim. P. 11(d)(2)(B).

            Because, of the six Moore factors, the first two of

whether   the      plea    was    knowing         and    voluntary        and    whether       the

defendant     is     innocent      are       the        most    important         factors         to

consider,    we      conclude     the     district        court     did     not    abuse       its

discretion      in    denying     Barnes’         motion       to   withdraw.           At     the

hearing, Barnes claimed that he thought the maximum sentence

would be 188 months.             In addition, he thought that even though

he was pleading guilty he would be able to raise a suppression

issue on appeal.           Barnes pleaded “straight up” and maintained

his   appellate      rights;      however,        this     does     not    entitle       him      to

challenge     antecedent         constitutional            claims         related       to     his

conviction.

                                              7
               The    district          court    held       a    lengthy      hearing         on    the

motion    to     withdraw         with    testimony         by    Barnes      and    a    detective

involved at the scene of arrest.                            The court properly decided

that the guilty plea was voluntary and knowing even though the

sentencing range was 188-235 months instead of the maximum of

188 months alleged by Barnes. 2                      The court held that, even if an

estimated sentence of 188 months was what Barnes understood, it

was   sufficient           for    the    defendant         to    be    informed      because        the

court     told    Barnes         that    it    was    an    estimate         of    his    sentence.

Further, at the hearing, Barnes admitted that he remembered the

Assistant U.S. Attorney saying that he would recommend 188, the

low   end    of      the    Guidelines         range.           At     the   Rule    11    hearing,

Barnes’ counsel stated that the sentence would be 188 months to

“two hundred something.”                  The transcript of the Rule 11 hearing

demonstrates         that        the    AUSA    stated          that    Barnes      is    a    career

offender, and that 188 would be the low end of the Guidelines

range.      Barnes also acknowledged at the Rule 11 hearing that the

court had discretion to impose a higher sentence.

               The    court       also    found       that       Barnes      had    not       met   his

burden to prove factual innocence since, at the time officers

executed a search warrant at his residence, he was found covered

      2
       This was the applicable Guidelines range before the court
struck    the   three-level   reduction   for    acceptance   of
responsibility.



                                                 8
in cocaine paste and running out of the residence.                    The officers

found cocaine, scales, crack, pyrex containers containing crack,

an amount of crack mixture in a bowl in the microwave, and

smudges of crack paste on the kitchen counter, doorway, and out

the door that Barnes ran through.               Barnes claimed that he did

not know what the paste was or how it got on him.                       However, no

one else in the residence had crack paste or residue on them.

We conclude the court did not err in finding that Barnes had not

made    a    credible     showing     of     his     legal     innocence.         In

consideration of these findings and reviewing the other Moore

factors, we conclude that the court did not abuse its discretion

in denying the motion.

             In accordance with Anders, we have reviewed the record

in this case and have found no other meritorious issues for

appeal.      We    therefore    affirm     in   part,    vacate    in    part,   and

remand.      We deny Barnes’ motions to produce grand jury records

and    for   a    transcript    at   Government      expense    and     motion   for

discovery.        This court requires that counsel inform Barnes, in

writing,     of   the   right   to   petition      the   Supreme   Court    of   the

United States for further review.                  If Barnes requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                   Counsel’s motion must

state that a copy thereof was served on Barnes.

                                         9
               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 IN PART,
                                                           VACATED IN PART,
                                                               AND REMANDED




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