                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4016


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LONNIE BIVENS, a/k/a Miz,

                Defendant - Appellant.



                            No. 10-4295


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

REGINALD GLOVER, a/k/a Chicago,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.   J. Frederick Motz, Senior District
Judge. (1:08-cr-00382-JFM-1; 1:08-cr-00382-JFM-2)


Submitted:   February 25, 2011            Decided:   March 17, 2011


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Howard Margulies, Columbia, Maryland; James Wyda, Federal Public
Defender, Joanna Silver, Staff Attorney, Baltimore, Maryland,
for Appellants.    Rod J. Rosenstein, United States Attorney,
Kwame J. Manley, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Lonnie          Bivens       and    Reginald        Glover      pled     guilty    to

conspiracy to distribute and possess with intent to distribute

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1),         846    (2006).           Bivens    was       sentenced   as     a   career

offender to 262 months’ imprisonment.                           Glover was sentenced to

240    months’     imprisonment            pursuant        to      a    Fed.   R.    Crim.     P.

11(c)(1)(C)      plea       agreement.           In     these       consolidated       appeals,

Bivens    claims       that        his     sentence        was         unconstitutional       and

procedurally unreasonable, and Glover claims that the district

court abused its discretion by denying his motion to withdraw

his guilty plea.

            Bivens does not challenge the district court’s finding

that he qualified for sentencing as a career offender under U.S.

Sentencing       Guideline         Manual       § 4B1.1         (2009).        Nor    does     he

challenge       the    court’s        calculation             of    the     career    offender

Guidelines range.             Instead, he claims that the district court

relied on his bare record of arrests to determine his sentence

in violation of his due process rights.                                Bivens also contends

that     such     reliance           rendered           his        sentence        procedurally

unreasonable.         We disagree.

            We    review       a     sentence        for      reasonableness,         using    an

abuse of discretion standard of review.                            Gall v. United States,

552 U.S. 38, 50 (2007).                  The first step in this review requires

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us to ensure that the district court committed no significant

procedural error.             United States v. Evans, 526 F.3d 155, 161

(4th     Cir.      2008).          Procedural             errors       include       “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.”         Gall, 552 U.S. at 51.                   The Court then considers the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances.                              Id.        In cases where, as

here, a defendant advances a constitutional challenge to his

sentence,       we    review       the    claim          de    novo.         United    States        v.

Copeland, 321 F.3d 582, 601 (6th Cir. 2003).

              We     have    reviewed         the       record       and    conclude       that   the

district    court      properly          found          that   Bivens        was    subject     to   a

career    offender          sentence      based          on    his    two     prior    qualifying

convictions, and not on his arrest record.                                    We also conclude

that the district court properly calculated Bivens’s Guidelines

range at 262 to 327 months’ imprisonment, and by imposing a

sentence    at       the    bottom       of    that       range,       did    not     enhance     his

sentence based on records of arrest.                           Thus, we find that Bivens

has not established a due process violation.                                 See United States

v.   Berry,     553        F.3d    273,       294       (3d    Cir.    2009)       (holding       that

constitutional due process is offended whenever a sentence is

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increased based on inadequate evidence, such as a bare arrest

record).

             Nor    has    Bivens     established         procedural        error.        The

district     court      considered       the       relevant    18    U.S.C.    § 3553(a)

(2006) factors, made an individualized assessment based on the

facts presented, and adequately explained the reasons for the

chosen sentence sufficient to convince us that it considered the

parties’ arguments and had a reasoned basis for its decision.

Bivens’s     contention           that     the       district       court      improperly

considered    his       arrest     records     is     unsupported     by    the   record.

Accordingly,       we      conclude       that       Bivens’s       sentence      is      not

procedurally unreasonable.

             Glover       claims    that     the      district      court    abused       its

discretion by not conducting a hearing to determine whether he

had advanced a fair and just reason for withdrawing his guilty

plea, and by not allowing him to withdraw his guilty plea.                                 We

review   a   district       court’s      denial      of   a   defendant’s      motion      to

withdraw his guilty plea for abuse of discretion.                          United States

v. Lambey, 974 F.2d 1389, 1393 (4th Cir. 1992) (en banc).                                   A

defendant does not have an absolute right to withdraw a guilty

plea.      United States v. Moore, 931 F.2d 245, 248 (4th Cir.

1991).       Nor     is    a     defendant         automatically     entitled        to    an

evidentiary hearing whenever he seeks to withdraw a guilty plea.

Id.      While      a     district       court       should     liberally      grant       an

                                               5
evidentiary hearing when a defendant seeks to withdraw a guilty

plea,   the       hearing       need    only    be    granted   when     the    defendant

advances      a    fair    and     just      reason    supporting      the     request   to

withdraw.         Id.

              “The       most    important          consideration   in       resolving    a

motion to withdraw a guilty plea is an evaluation of the Rule 11

colloquy at which the guilty plea was accepted.”                         United States

v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003); United States v.

Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996).                         If the plea was

knowingly and voluntarily entered with the close assistance of

competent counsel during a properly conducted Rule 11 guilty

plea colloquy, the defendant is left with a very limited basis

upon which to have his plea withdrawn.                     Bowman, 348 F.3d at 414.

              The       district       court   may,     however,    consider      several

other factors in determining whether the defendant had advanced

a fair and just reason.”               Id.     They include:

     (1)   whether   the   defendant  has   offered credible
     evidence that his plea was not knowing and voluntary;
     (2) whether the defendant has credibly asserted legal
     innocence; (3) whether there has been a delay between
     the entering of the guilty plea and the filing of the
     motion; (4) whether the 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.

Moore, 931 F.2d at 248.




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              We have reviewed the record and conclude that Glover’s

plea was knowing and voluntary, that the district court fully

complied      with    the   Fed.     R.    Crim.   P.   11     requirements          when

accepting his plea.            Glover has not demonstrated on this record

that he advanced a fair and just reason for withdrawing the plea

warranting     a     hearing    or   withdrawal    of   the    plea.         Thus,    the

district court did not abuse its discretion.

              Accordingly,      we   affirm     Bivens’s   sentence      and    affirm

Glover’s conviction.           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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