UNPUBLISHED

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 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (5:08-cr-00271-BR-1)

Argued: October 27, 2010 Decided: January 21, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 filed 

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 the district court erred 

in accepting his guilty plea. Appellant specifically asserts 

that no sufficient factual basis existed to support 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 forth 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.
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I. BACKGROUND

Beginning in March 2007, Warren County, North Carolina law 

enforcement officers employed a confidential informant to make

controlled purchases of narcotics. Joint Appendix (“J.A.”) 10; 

Pl. Br. 6. Their investigation culminated in Edgerton being 

indicted (initially) on two counts of possession 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. 121-22; 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. Police 

officers found marijuana in a white Mazda, and $34,000, 

ammunition and four firearms in a different car, a Chevrolet 

Cavalier, which belonged to Edgerton’s father. J.A. 121-22; Pl. 

Br. 6-7. 

A Superseding Indictment 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 same two counts of 

possession with intent to distribute cocaine base as set forth 
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in the initial indictment against him. J.A. 10, 12-15. The 

marijuana found in the Mazda in the search incident to 

Edgerton’s arrest formed the basis for Count Three of the 

superseding indictment, possession with intent to distribute 

marijuana. J.A. 12-13; Pl. Br. 6-7. Count Four of the 

Superseding Indictment 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 for Count Five of the Superseding Indictment, which 

alleged that Edgerton possessed 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 review 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 addressed 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 to 
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September 16, 2008 when 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 described 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. Edgerton answered 

affirmatively to each of those questions. Id. Edgerton stated 

that he was not threatened or forced to enter into the plea 

agreement, that he had no questions about the sentencing 

guidelines, 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 and Four were to be dismissed. J.A. 34, 38, 40, 45. The 

district court judge read Counts One, Two, and Five of the 

superseding indictment aloud and Edgerton indicated his guilt as 
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to each charge. J.A. 34-38. The court accepted Edgerton’s 

plea of guilty, having found that the plea was entered freely 

and voluntarily. 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 despite 

Edgerton’s purported desire to go to trial, and that he was 

innocent of the charges to which he pled guilty. J.A. 48-57. 

The district court held a hearing, during which time Edgerton 

stated that he pled guilty because he didn’t know what he was 

doing, 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 Edgerton to a term of imprisonment of 229 months. 

J.A. 106, 110-11.

II. ADEQUATE BASIS FOR ENTRY OF GUILTY PLEA

A. Standard of Review

Generally, the adequacy of a guilty plea is reviewed in the 

Rule 11 context for harmless error. United States v. Goins, 51 

F.3d 400 (4th Cir. 1995). Conversely, where an error is not 

preserved before the district court by noting a specific Rule 11 
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error, such as one occurring during a plea colloquy, plain error 

review applies. United States v. Martinez, 277 F.3d 517, 524-27 

(4th Cir. 2002); see United States v. Massenburg, 564 F.3d 337, 

341-42 (4th 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 

Edgerton 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 support 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 establish 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 exists 
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before entering judgment on a guilty plea.” United States v. 

Ketchum, 550 F.3d 363, 366 (4th 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 (4th Cir. 1997)). A district court 

judge “taking a defendant’s plea . . . need 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, the United States 

Court of Appeals for the Sixth Circuit recently vacated a 

defendant’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 (6th Cir. 2009). The Sixth Circuit 

found that the district court judge, the defendant, and the 

defendant’s counsel each were confused as to what conduct 

sufficiently established a § 924(c) offense. Id. at 627. At 

his sentencing hearing, the defendant expressed concern and 

confusion about the § 924(c) offense. Id. at 627-28. The 

defendant’s counsel explained to the court that his client was 
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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 stated that he was guilty because 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 to 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 statutory requirement that the firearm be possessed 

“‘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 been 
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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 crime 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 described 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 that 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 charged in the superseding 

indictment, the district court judge twice accurately discussed 

the nature of Count Five during the plea colloquy and Edgerton 

affirmatively stated that he committed the offenses as stated by 

the court. J.A. 29-37. Maye is readily distinguishable from the 

instant case since, here, neither Edgerton nor his counsel 

expressed any confusion as to the nature of Count Five or 
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§ 924(c) which necessitated a recitation of the elements of the 

offense. Further, there was no erroneous legal pronouncement 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 court 

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 elements of Count Five –

Edgerton admitted guilt following the district court’s reading

of the charges, explanation of potential punishment, and 

extensive colloquy. Simply stated, no 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 discretion. United States v. 

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). “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 149, 161 (4th Cir. 

2009) (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 

(4th Cir. 1999)).
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B. Analysis

“There is no absolute right to withdraw a guilty plea.” 

Ubakanma, 215 F.3d at 424. The movant bears the burden of 

showing a just reason for withdrawal, 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 has 

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 waste 

judicial resources.

Id.; United States v. Moore, 931 F.2d 245, 248 (4th 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 extensive Rule 11 

hearing conducted prior to the district court’s acceptance of 

the defendant’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 

understood 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 attorney in light of his counsel’s aggressively 
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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 district court’s denial of the defendant’s motion 

to withdraw his plea of guilty. Similarly, in 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 and 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 innocence 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 additional time to review 

the superseding indictment before the plea colloquy. J.A. 29. 

When Edgerton argued to withdraw his plea at his sentencing 

hearing, he stated that he did not possess the four firearms 
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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 erase his sworn 

assertion that no one threatened him or forced him to plead 

guilty. J.A. 33, 38. 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 charged 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 close 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 no sufficient basis exists for this Court to find

that the district court abused its discretion in denying 

Edgerton’s motion to withdraw his guilty plea.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district 

court is AFFIRMED. There was both an adequate factual basis for 

the district court’s acceptance of Edgerton’s plea of guilty and 
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the district court properly denied Edgerton’s motion to withdraw 

his plea of guilty.

AFFIRMED