UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4753

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEONARD MINCY, a/k/a Mike,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Roanoke. Glen E. Conrad, Chief 

District Judge. (7:10-cr-00012-GEC-1)

Submitted: April 11, 2012 Decided: May 23, 2012

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul A. Dull, Roanoke, Virginia, for Appellant. Timothy J. 

Heaphy, United States Attorney, Jean B. Hudson, Assistant United 

States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Leonard Mincy appeals his convictions for conspiracy 

to possess with intent to distribute and to distribute heroin, 

in violation of 21 U.S.C. § 846 (2006), and possession of a 

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

§ 922(g)(1) (2006). Specifically, he challenges the district 

court’s denial of his motion to withdraw his guilty plea.1

 For 

the reasons that follow, we affirm.

We review the 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 

does not have an absolute right to withdraw a guilty plea, even 

before sentencing.” United States v. Moore, 931 F.2d 245, 248 

(4th Cir. 1991). Instead, he must show a “fair and just reason” 

for withdrawing his plea. Id. 

 1 In his Statement of Issues, Mincy also included a 

challenge to his sentence, but provided no argument to support 

his claim. Accordingly, Mincy forfeited appellate review over 

this assignment of error. See Fed. R. App. P. 28(a)(9) (“[T]he 

argument . . . must contain . . . appellant’s contentions and 

the reasons for them, with citations to the authorities and 

parts of the record on which the appellant relies.”); see also

Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 

2006) (conclusory assignments of error without supporting 

argument are insufficient to preserve a merit-based challenge to 

a district court’s order on appeal); IGEN Int’l, Inc. v. Roche 

Diagnostics GmbH, 335 F.3d 303, 308 (4th Cir. 2003) (holding 

that a “[f]ailure to present or argue assignments of error in 

opening appellate briefs constitutes a waiver of those 

issues[,]” even when it appears the district court was wrong).
3

In determining whether Mincy has carried his burden, 

the court considers six factors: 

(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 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. Although all the factors in Moore must 

be given appropriate weight, the key in determining whether a 

motion to withdraw should be granted is whether the Fed. R. 

Crim. P. 11 hearing was properly conducted. 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 was adequate. United States v. Lambey, 974 F.2d 

1389, 1394 (4th Cir. 1992). 

We have reviewed the record in light of the Moore

factors and conclude that Mincy has not carried his burden. The 

district court substantially complied with the mandates of Rule 

11 in accepting Mincy’s guilty plea, ensuring that Mincy’s plea 

was knowing and voluntary and was supported by a sufficient 

factual basis. United States v. DeFusco, 949 F.2d 114, 116, 

119-20 (4th Cir. 1991). Moreover, Mincy informed the district 
4

court during the plea colloquy that he had not been threatened 

or coerced to plead guilty, and his statements at the plea 

hearing indicated that he entered the plea knowingly and 

voluntarily. Blackledge v. Allison, 431 U.S. 63, 74 (1977); see

Fields v. Attorney Gen., 956 F.2d 1290, 1299 (4th Cir. 1992) 

(“Absent clear and convincing evidence to the contrary, a 

defendant is bound by the representations he makes under oath 

during a plea colloquy.”). Additionally, Mincy has not asserted 

his innocence, there was a significant delay between the entry 

of the plea and the motion to withdraw the plea, and both the 

Government and the courts would be burdened by allowing him to 

withdraw his guilty plea. 

Mincy argues that his expectation that he would not be 

sentenced as an armed career criminal establishes a fair and 

just basis for withdrawing his guilty plea. We disagree. Even 

accepting counsel’s own argument that his representation was 

substandard because he erroneously concluded that his client

would not qualify for the armed career criminal enhancement,

Mincy acknowledged in his signed plea agreement that he knew he 

could face a mandatory minimum fifteen-year prison term if he 

was designated an armed career criminal. He acknowledged this 

possibility again under oath at the plea hearing before entering 

his guilty plea. He also confirmed under oath that no one had 

promised him a particular sentence. Based on our consideration 
5

of the Moore factors, we conclude the district court did not 

abuse its discretion in denying the motion to withdraw the 

guilty plea.2 See United States v. Foster, 68 F.3d 86, 87-88 

(4th Cir. 1995) (holding that counsel’s inaccurate sentencing 

predictions generally do not constitute ineffective assistance).

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal conclusions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

AFFIRMED

 2 To the extent that Mincy asserts an independent argument 

that he was denied effective assistance of counsel, we conclude 

that the claim is not cognizable on direct appeal as the record 

does not conclusively show that counsel was ineffective. United 

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United 

States v. King, 119 F.3d 290, 295 (4th Cir. 1997).