                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4097


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAVID HOWARD,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Marvin J. Garbis, Senior District
Judge. (1:11-cr-00494-MJG-2)


Submitted:   November 21, 2013            Decided:   December 18, 2013


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dennis M. Hart, Washington, D.C., for Appellant. Rod J.
Rosenstein, United States Attorney, Mark W. Crooks, Assistant
United States Attorney, Julie D. Podlesni, Special Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             David Howard pled guilty to a robbery conspiracy and

two related weapons charges pursuant to a negotiated Fed. R.

Crim. P. 11(c)(1)(C) agreement.                  Howard was sentenced to the

agreed upon sentence of thirty-two years and one day in prison.

He appeals from the denial of his motion to withdraw his guilty

plea. 1   We affirm.

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

withdraw     a    guilty     plea    for    abuse   of    discretion.         United

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

seeking     to    withdraw    his     guilty     plea    bears   the    burden    of

demonstrating that withdrawal should be granted, id., and the

defendant must show “‘a fair and just reason’” for withdrawal of

his plea.        United States v. Faris, 388 F.3d 452, 456 (4th Cir.

2004)     (citing   Fed.     R.     Crim.   P.   11(d)(2)(B)).         In   deciding



      1
       At the end of his brief, in an argument not included in
the table of contents or his summary of argument, Howard
challenges the denial of his motion to dismiss the indictment.
He asserts that his claims that he was improperly targeted for
prosecution were improperly dealt with in a summary manner.
However, our review of the record discloses that the court
provided Howard ample opportunity to make his claims and then
the court ruled on the claims, as raised.    Howard was free to
submit any evidence or make any inquiry he now claims was
lacking.   Accordingly, assuming this issue is properly before
us, we affirm the district court’s denial of Howard’s motion to
dismiss the indictment.




                                            2
whether to permit a defendant to withdraw his guilty plea, a

district    court    should   consider     the   six    factors     outlined    in

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

     (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.

            Howard    avers    that    the    district      court      improperly

weighed    and   considered    the    Moore   factors     in    numerous     ways.

First, he argues that his plea was not knowing because it was

based upon the incorrect advice of his attorney that he could

withdraw his plea at any time. 2           Howard relies inter alia on his

attorney’s    testimony    that   he    informed       Howard   that    he   could

withdraw his plea prior to the Rule 11 hearing and states that


     2
       Later in his appellate brief, Howard contends that the
Rule 11 hearing was deficient (and his plea involuntary) because
he did not specifically agree to the factual stipulation.
However, Howard did agree to plead guilty following the factual
recitation and stated that he was pleading guilty because he
was, in fact, guilty.      Moreover, the parties (on Howard’s
insistence) negotiated a stipulated change to the factual
recitation after it was read, which implies that the remainder
of the statement was satisfactory. In any event, Howard signed
the plea agreement, which contained essentially the same factual
statement. Therefore, we conclude that any error in the Rule 11
hearing regarding the factual statement did not credibly
undermine the voluntariness of the plea.



                                       3
this   advice       could     have       led    to       a   misunderstanding.            However,

Howard’s claim that he understood that he could withdraw his

plea at any time cannot stand in the face of the language to the

contrary in the plea agreement and Howard’s testimony at his

Rule       11   hearing. 3      Even        had      he      initially     misunderstood         the

finality of his plea, the plea agreement and his Rule 11 hearing

should      have    cleared         up    any     misunderstanding.               Moreover,      his

attorney testified that he made it clear to Howard that once he

had his Rule 11 hearing it would be very difficult to withdraw

his plea.         The district court found the attorney’s testimony to

be credible, and we find no basis on which to disturb this

finding on appeal.

                 Next,    Howard         claims      that      his    plea      was    involuntary

based upon his medical and emotional problems and medication and

that his counsel and the court should have made a more searching

inquiry         prior    to   the    Rule       11       hearing     and   at    the    motion    to

withdraw         hearing.       This       claim         was   waived      by    Howard    at    his

hearing on his motion to withdraw when he explicitly stated that

he was not pursuing it.                     This statement followed the court’s

request that everything on which Howard was relying should be


       3
       In his plea agreement, Howard was informed that there
would be no trial if he pled guilty, and at his Rule 11 hearing,
he was told that the plea was important because there would be
no trial.



                                                     4
examined    and    argued    so    that     a    proper     record      of    his    pro    se

allegations could be made.                Howard fails to even address the

waiver on appeal and, accordingly, provides no basis to ignore

it.

            Howard also avers that the district court erred in

failing to make a sufficient record regarding the threats to

investigate       and    prosecute    his       mother      and   the    use    of    these

threats to coerce his plea.               While Howard recognizes that such

threats are not unlawful, United States v. Pollard, 959 F.2d

1011, 1021 (D.C. Cir. 1992), he claims that there is no evidence

on the record as to whether these threats were made in good

faith or not.       However, Howard bore the burden to show that his

motion was meritorious; as such, Howard was charged with showing

that there was no probable cause to charge his mother with a

crime.     See United States v. Wright, 43 F.3d 491, 499 (10th Cir.

1994) (holding that, in order to lawfully threaten third persons

with prosecution during plea negotiations, the Government must

have   probable     cause    that     those       third     parties      committed         the

crimes covered by the threats).                    The district court was not

required to make his case for him, and even on appeal, Howard

presents no evidence on which to question the Government’s good

faith.

            Next,       Howard    alleges       that   he    credibly        asserted      his

innocence and that the district court erred in determining that

                                            5
the proper test was whether the Government could prove its case

if it went to trial.                In attempting to withdraw from a guilty

plea, a defendant is not required to provide conclusive proof of

innocence.       See United States v. Thompson-Riviere, 561 F.3d 345,

353    (4th   Cir.      2009).        Instead,         a    defendant's        burden        is    to

credibly      assert     his        legal    innocence:           that    is,        to     present

evidence that (1) inspires belief and (2) tends to either defeat

the elements in the government's prima facie case or make out a

successful affirmative defense.                      Id.; see also United States v.

Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007) (“[T]he defendant

must present a credible claim of legal innocence.                                         In other

words, the defendant must make a factual argument that supports

a legally cognizable defense.” (citations omitted and emphasis

in original)).

              Here,      Howard       avers          that    he    never       accepted           the

statement     of    facts      at    the     Rule      11    hearing     and     that       a     main

witness against him had since changed his story and expressed

remorse about implicating Howard.                      However, Howard presented no

evidence aside from his own conclusory testimony to support his

allegations        of   innocence          and       new    evidence.           In        fact,    in

presenting       his    case,       Howard    did      not    even      detail       his     actual

relationship       to    the    conspiracy,           if    any,   or    provide           specific

explanation as to his actual knowledge, if any, of the crimes.

He    referred     to   transcripts          and      emails      and    phone       calls,       but

                                                 6
failed to actually produce any evidence.                          Contrary to Howard’s

contentions,       asserting       his    legal          and     actual     innocence       and

demanding a trial is insufficient to make a credible claim of

innocence.       See Hamilton, 510 F.3d at 1214-15.

            Next,       Howard    contends         that    he     did     not    have     close

assistance of competent counsel.                      To prevail on this factor,

Howard    must     demonstrate         “(1)   that       his     counsel's       performance

‘fell     below    an     objective       standard         of     reasonableness'          and

(2) that ‘there [was] a reasonable probability that, but for

counsel's error, he would not have pleaded guilty and would have

insisted on going to trial.’”                 United States v. Bowman, 348 F.3d

408, 416 (4th Cir. 2003).                 Under this standard, this court’s

inquiry is limited to whether Howard's counsel “was reasonable

‘under    prevailing         professional         norms,’       and    in   light    of    the

circumstances.”         Id.

            We     find   that     the    district         court’s      conclusions        that

Howard’s     attorney         acted     reasonably         were       not   an     abuse    of

discretion.        The court accepted the attorney’s testimony that,

as there was no chance of success at trial, he instead attempted

(and    succeeded)      in     negotiating        a   beneficial          plea    agreement.

Howard presented no evidence in district court (or on appeal)

showing that he had a reasonable chance for success at trial.

While     Howard    further       alleges         that     his     attorney       improperly

assumed     his     guilt        and     failed       to       properly         analyze    the

                                              7
consequences of filing a motion to suppress, Howard offers no

analysis of the evidence showing that his attorney’s findings

were erroneous.

           We have carefully considered Howard’s remaining claims

of error, and we find no abuse of discretion in the district

court’s ruling.        Accordingly, we affirm Howard’s convictions.

We   dispense   with   oral   argument   because    the   facts   and   legal

contentions     are   adequately   presented   in   the   materials     before

this court and argument would not aid the decisional process.



                                                                   AFFIRMED




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