**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 09**  **- 4865** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. ALBERT EDGERTON , Defendant

– Appellant
.

Appeal from the United States District Court for the Eastern Dis trict of North Carolina , at Raleigh
. W. Earl Britt , Senior District Judge. ( 5:08

- cr - 00271

- BR

- 1 )
Argued : October 27, 2010 Decided: January 2 1, 2011

Before TRAXLER, Chief Judge, DAVIS , Circuit Judge , and Damon J. KEITH, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation
.
Affirmed by un publishe d per curiam opinion
.

**ARGUED:** Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton, North Carolina, for Appellant. Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. **ON BRIEF:** George E. B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: On June 1, 2009, in the Eastern District of North Carolina, Appellant Albert Edgerton entered a plea of guilty to three
counts (One, Two, and Five) of a superseding indictment f iled against him . Edgerton filed a motion to withdraw his plea of guilty on July 21, 2009 and asserted that he was out of his right mind, that he was pressured to plead guilty by his attorney, and that he was innocent . The district court denied Edgerton’ s motion to withdraw, having found that his plea was entered knowingly and voluntarily and that no reason existed permitting withdrawal. The district court sentenced Edgerton to a term of imprisonment of 229 months
. On appeal, Appellant contends that th e district court erred in accepting hi s guilty plea. Appellant specifically asserts that no sufficient factual basis existed to suppo rt his plea of guilty to Count Five of the superseding indictment since the plea agreement referred to possession of crack rather than possession of marijuana as set for th in Count Five of the superseding indictment. Appellant also contends that the district court abused its discretion in denying his motion to withdraw his plea of guilty
. We affirm.3 I. BACKGROUND Beginn ing in March 2007, Warren County, North Carolina l aw enforcement officers employed a confidential informant to make controlled purc hases of narcotics. Joint Appendix (“J.A.”) 10; Pl. Br. 6. T heir investigation culminated in Edgerton being indicted (initia lly) on two counts of p osse ssion with intent to distribute cocaine base (crack) on September 10, 2008 in the Eastern District of North Carolina. J.A. 10, 121
. Police officers arrested Edgerton during a traffic stop on September 16, 2008 and searched his car (incident to his arrest). J.A. 121; Pl. Br. 6. Police officers then took Edgerton to his home and searched it (with his consent). J.A. 121; Pl. Br. 6. Police officers recovered $5100 from his car and two firearms from his home
. J.A. 12 1

- 22; Pr. Br. 6

- 7 . Police officers also took Edgerton to his grandmother’s home where he stated that he kept drug proceeds in a car. J.A. 121

- 22; Pr. Br. 6

- 7. P olice officers found marijuana in a white Mazda, and $34,000, ammunition and four firearms in a differen t car, a Chevrolet Cavalier, which belonged to Edgerton’s father. J.A. 121

- 22; Pl. Br. 6

- 7. A Superseding I ndictment was returned by a grand jury on November 19, 2008, including five counts against Edgerton. J.A. 12

- 15. Counts One and Two were the sam e two counts of possession with intent to distribute cocaine ba se as set forth4 in the initial i ndictment against him
. J.A. 10, 12

- 15. The marijuana found in the Mazda in the search incident to Edgerton’s arrest formed the basis f or Count Three of the
supe rseding i ndictment, possession with intent to distribute marijuana. J.A. 12

- 13; Pl. Br. 6

- 7. Count Fo ur of the Superseding I ndictment alleged that Edgerton knowingly possessed several firearms, including the two found at his home and those recovered from the Cavalier on his grandmother’s property, unlawfully as a convicted felon. J.A. 13; Pl. Br. 6

- 7. The firearms and ammunition recovered from the Cavalier formed the basis f or Count Five of the Superseding Indictment , which alleged that Edgerton possesse d said firearms in furtherance of drug trafficking, specifically, possession with intent to distribute marijuana, as set forth in Count Three of the superseding indictment
. J.A. 13; Pl. Br. 6

- 7. On June 1, 2009 , Edgerton appeared before the district
court to enter a plea of guilty to Counts One, Two, and Five of the superseding indictment . J.A. 18

- 38. The district court recessed to permit Edgerton time to re view the superseding indictment and to ensure that he had an understanding of the charges against him. J.A. 28

- 29. Following recess, Defendant’s counsel addres sed in open court Edgerton’s concern that Counts Three, Four, and Five in the superseding indictment stated that the offenses occurred on September 17, 2008 as opposed to5 September 16, 2008 whe n he was arrested
. J.A. 30

- 31. Edgerton’s counsel noted that the usage of the phrase “on or about” immediately preceding the date provided sufficient specificity to support the charges in the superseding indictment
. Id. Neither Edgerton nor his counsel brought to the district court’s attention the fact that the plea agreement erroneously describ ed the firearms crime in Count Five of the superseding indictment as carrying of firearms in furtherance of possession with intent to distribute 5 grams or more of cocaine base (crack) instead of possession with the intent to distribute marijuana. During the plea colloquy, the district court judge asked Edgerton if he understood his rights, and if he had read and understood the plea agreement. J.A. 31

- 34. Edg erton answered affirmatively to each of those questions. Id. Edgerton stated tha t he was not threatened or forced to enter into the plea agreement, that he had no questions abou t the sentencing gui delines, that his counsel exercised professional judgment in forecasting his potential sentence, that he was satisfied with the services his counsel rendered to him, and that he had no questions. J.A. 31

- 38. Pursuant to the plea agreement, Counts Three a nd Four were to be dismissed
. J.A. 34, 38, 40, 45. Th e district court judge read Counts One, Two, and Five of the superseding indictment aloud and Edgerton indicated his guilt as6 to each charge. J.A. 34

- 38. The court accepted Edgerton’s plea of guilty , having found that the plea was entered freely and volun tarily. J.A. 38. Edgerton filed a motion to withdraw his plea of guilty on July 21, 2009, contending that his counsel forced him to plead guilty against his will, that his counsel refused to investigate the facts of his case or obtain an expert witness de spite Edgerton’s purported desire to go to trial, and that he was innocent of the charges to which he ple d guilty. J.A. 48

- 57. The district court held a hearing, during which t ime Edgerton stated that he ple d guilty because he didn’t know what he was doi ng, was losing his mind, and was pressured by his counsel. The district court judge found that Edgerton’s plea of guilty was entered knowingly and voluntarily and that no reason existed to permit withdrawal. J.A. 71, 73. The district court sentenced Edge rton to a term of imprisonment of 229 months. J.A. 106, 110

- 11.

II. A DEQUATE BASIS FOR ENTRY OF GUILTY PLEA
A. Standard of Review Generally, the adequacy of a gui lty plea is reviewed in the Rule 11 context for harmless error
. United States v. Goins , 51 F.3d 40 0 (4 th Cir. 1995). Conversely, where an error is not preserved before the district court by noting a specific Rule 117 error, such as one occurring during a plea colloquy, plain error review applies. United States v. Martinez , 277 F.3d 517, 524

- 27 (4 th Ci r. 2002) ; see United States v. Massenburg , 564 F.3d 337, 341

- 42 (4 th Cir. 2009) . Edgerton filed a motion to withdraw his plea of guilty, but the motion did not specifically contend that a specific Rule 11 error occurred during the plea colloquy and Edgert on did not argue before the district court that an insufficient factual basis existed to support his guilty plea
. Accordingly , plain error review applies to his claim that no sufficient factual basis existed to suppo rt his plea of guilty to Count Five of the superseding indictment since the plea agreement referred to the use of firearms in furtherance of the criminal offense of possession with intent to distribute crack rather than marijuana , as set forth in Count 5 of the superseding indictment
. To esta blish plain error, the defendant must show that there is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if ( 4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States , 520 U.S. 461, 467 (1997) (internal citations omitted). “Federal Rule of Criminal Procedure 11(b)(3) requires the district court to determine whether a factual basis exists8 before entering judgment on a guilty plea.” United States v. Ketchum , 550 F.3d 363, 366 (4 th Cir. 2008). “[T]he district court ‘possesses wide discretion,’ and it ‘need only be subjectively satisfied that there is a sufficient factual basis for a conclusion that the defendant committed all of the elements of the offense.’” Id. ( quoting United States v. Mitchell , 104 F.3d 649, 652 (4 th Cir. 1997) )
. A district court judge “ taking a defendant’s plea
. . . n eed not . . . explain the elements of each charge to the defendant on the record. ” Bradshaw v. Stumpf , 545 U.S. 175, 183 (2005)
.

B. Analysis Finding impermissible Rule 11 error, t he United States Court of Appeals for the Sixth Circuit recently vacated a d efendant’s conviction for firearm possession in furtherance of drug trafficking and discussed the factual basis necessary to uphold a conviction under 18 U.S.C. § 924(c). United States v. Maye , 582 F.3d 622, 627

- 31 (6 th Cir. 2009). The Sixth Circuit foun d that the district court judge, the defendant, and the defendant’s counsel each were confused as to what con duct sufficiently established a § 924(c) offense. Id. at 627. At his sentencing hearing, the defendant expressed c oncern and confusion about the § 924(c) offense
. Id. at 627

- 28. The defendant’s counsel explained to the court that his client was9 still concerned following the court’s provision of time for counsel to explain the nature of the charge and its elements
. Id. at 628. The district court judge then read the indictment aloud, the defendant stated that he was guilty of the charged offense and that he understood why, the district court judge invited the defendant to explain it before the court, and the defendant state d that he was guilty bec ause he “ just had the gun period, point blank ” in his apartment when the cocaine sale took place on his front porch. Id. at 628

- 29 (emphasis in original). The district court then proceeded to sentence the defendant. The defendant appealed his sentence t o the Sixth Circuit, contending that the district court erred in finding that a factual basis existed to support his plea of guilty, asserting that his admission that he possessed a revolver in close proximity to his drug transaction was insufficient. Id. at 627

- 28. The Sixth Circuit noted that “coincidental presence of a firearm in the vicinity of a crime is insufficient to support a section 924(c) conviction” since such a pronouncement falls short of the statuto ry requirement that the firearm be poss essed “‘in furtherance’” of drug trafficking or “possessed to advance or promote the commission of the underlying [drug

- trafficking] offense
. ” Id. at 630

- 31. The court noted that the firearm was not brandished during the crime, the gun may not have been10 loaded or easily visible to the informant, and was not sufficiently established as a “tool of [the defendant’s] trade.” Id. at 631 n.3. Accordingly, the Sixth Circuit found that it was unclear that the defendant understood the elements of the charged crim e and that plain error had occurred, such that the court remanded the case to provide for a new plea hearing. Id. at 630. Edgerton contends that application of Maye compels this Court to conclude that Rule 11 error occurred such that the four firearms des cribed in Count Five of the superseding indictment were not possessed by him “in furtherance of” a drug trafficking activity, that he never admitted to specifically possessing the four firearms described in Count Five of the superseding indictment, and tha t no sufficient basis existed for the district court to accept his plea of guilty to Count Five. The plea colloquy plainly demonstrates that notwithstanding a scrivener’s error in the plea agreement delineating crack cocaine rather than marijuana as charg ed in the superseding indictment, the district court judge twice accurat ely discussed the nature of Count Five during the plea colloquy and Edgerton affirmatively stated that he committed the offense s as stated by the court
. J.A. 29

- 37. Maye is readily di stinguishable from the instant case since, here, neither Edgerton nor his counsel expressed any confusion as to the nature of Count Five or11 § 924(c ) which necessitated a recitation of the elements of the offense. Further, there was no erroneous legal pro nouncement of the elements of Count Five or any other allegation of the superseding indictment which could provide Edgerton sufficient basis to allege confusion as to the elements of § 924(c). Although it is the better practice to do so, the district cour t judge was not required to recite the elements of § 924(c). Thus, the district court had a proper basis upon which to find that Edgerton committed all of the element s of Count Five

– Edgerton admitted guilt following the district court’s reading of the c harges, explanation of potential punishment, and extensive colloquy. Simply stated, n o error occurred.

III. MOTION TO WITHDRAW PLEA OF GUILTY
A. Standard of Review We review a district court’s denial of a motion to withdraw a plea of guilty for abuse of d iscretion. United States v. Ubakanma , 215 F.3d 421 , 424 ( 4 th Cir. 200 0 ). “A court has abused its discretion if its decision ‘is guided by erroneous legal principles’ or ‘rests upon a clearly erroneous factual finding.’” Brown v. Nucor Corp. , 576 F.3d 14 9, 161 (4 th Cir. 2009) (quoting Westberry v. Gislaved Gummi AB , 178 F.3d 257, 261 (4 th Cir. 1999)).12 B. Analysis “There is no absolute right to withdraw a guilty plea. ” Ubakanma , 215 F.3d at 424. T he movant bears the burden of showing a just reason for with drawal , and courts consider multiple factors including: (1 ) Whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there h as 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 wa ste judicial resources. Id. ; United States v. Moore , 931 F.2d 245, 248 (4 th Cir. 1991).
In Ubakanma , the defendant sought to withdraw his plea of guilty to a wire fraud offense. Ubakanma , 215 F.3d at 424. This Court found that the district court’s exte nsive Rule 11 hearing conducted prior to the district court’s acceptance of the d efendant’s plea of guilty included the defendant’s acknowledgement under oath that he was not coerced, that he was guilty of the specified wire fraud offense, and that he unde rstood the terms of his plea agreement
. Id. These factors necessitated that this Court find the plea was knowing and voluntary. Id. Further, this Court discarded the defendant’s conclusory assertion of innocence and his claim that he was coerced by his a ttorney in light of his counsel’s aggressively13 negotiated, favorable plea agreement, and the defendant’s sworn statements that he reviewed the plea agreement and voluntarily agreed to its terms. Id. at 424

- 25. Accordingly, this Court affirmed the distric t court’s denial of the defendant’s motion to withdraw his plea of guilty. Similarly, i n Moore , this Court affirmed the district court’s denial of the defendant’s motion to withdraw a guilty plea where six weeks elapsed between the filing of the motion an d entry of the plea, nothing in the plea agreement supported the defendant’s claim of unconscionability, the defendant was ably represented by counsel , and minor quibbles with the government’s version of events did not make the defendant’s claim of innocen ce credible
. Moore , 931 F.2d at 249

- 50. Edgerton contends that he was “not in his right mind,” that he was pressured to plead guilty by his attorney throughout the case, and that he is innocent. J.A. 75. The district court found that his contentions lacked credibility since he stated under oath during the plea colloquy that he was guilty. The district court found that he did not appear to lack intelligence and he appeared well

- informed. Review of the record demonstrates that Edgerton was given addi tional time to review the superseding indictm ent before the plea colloquy. J.A. 29.
W hen Edgerton argued to withdraw his plea at his sentencing hearing, he stated that he did not possess the four firearms14 taken from his father’s Cavalier and that he was forced to plead guilty . J.A. 29. These statements do not erase his sworn statements during the plea colloquy that he did possess the four firearms in furtherance of drug trafficking, as charged in Count Five of the superseding indictment , nor do they era se his sworn assertion that no one threatened him or forced him to plead guilty
. J.A. 3 3, 3 8. Edgerton made sworn statements indicating that he was not coerced to plead guilty, that he reviewed the plea agreement with his counsel and understood its terms , that he understood the charges in the superseding indictment and that he committed the offenses charg ed in Counts One, Two, and Five. J.A. 31

- 38. Thus, he simply cannot meet his burden to demonstrate that his plea was not knowing and voluntary and that he did not have c lose assistance of counsel or was threatened
. His belated claims of innocence simply are not credible. The precedential cases Ubakanma and Moore , and the record, therefore establish that n o sufficient basis exists for this Court to find that the district court abused its discretion in deny ing Edgerton’s motion to withdraw his guilty plea.

I V . C ONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. There was both an adequate factual basis for the district c ourt’s acceptance of Edgerton’s plea of guilty and15 the district court properly denied Edgerton’s motion to withdraw his plea of guilty.
AFFIRMED