UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4708

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ADRIAN CHRISTOPHER SOLARES, a/k/a Joker,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Max O. Cogburn, Jr., 

District Judge. (3:12-cr-00114-MOC-DSC-1)

Submitted: March 24, 2015 Decided: April 6, 2015

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North 

Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Anthony J. Enright, Assistant United States Attorney, 

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Adrian Christopher Solares appeals his convictions and 93-

month sentence imposed after he pled guilty to one count each of 

conspiracy to interfere with commerce by threats or violence, in 

violation of 18 U.S.C. § 1951(a) (2012); possession of a firearm 

in furtherance of a crime of violence, in violation of 18 U.S.C. 

§ 924(c)(1) (2012); and conspiracy to use or carry a firearm in 

furtherance of a crime of violence, in violation of 18 U.S.C. 

§ 924(o) (2012). Solares asserts that his guilty plea should be 

set aside and his case remanded to the district court for trial 

because he argues that: (1) his first attorney rendered 

ineffective assistance of counsel when counsel allegedly advised 

Solares that he could not plead guilty to some of the counts 

against him and proceed to trial on the remaining counts; and 

(2) the district court abused its discretion when it denied his 

motion to withdraw his guilty plea. Finding no error, we 

affirm.

First, we reject Solares’s ineffective assistance of 

counsel claim on this appeal. “It is well established that a 

defendant may raise a claim of ineffective assistance of counsel 

in the first instance on direct appeal if and only if it 

conclusively appears from the record that counsel did not 

provide effective assistance.” United States v. Galloway, 749 

F.3d 238, 241 (4th Cir.) (internal quotation marks, brackets,
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ellipsis, and emphasis omitted), cert. denied, 135 S. Ct. 215 

(2014). Absent such a showing, ineffective assistance claims 

should be raised in a motion brought pursuant to 28 U.S.C. 

§ 2255 (2012), in order to permit sufficient development of the 

record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th 

Cir. 2010).

To prevail on an ineffective assistance of counsel claim, a 

defendant must demonstrate that: (1) counsel’s performance was 

objectively unreasonable; and (2) defendant was prejudiced by 

counsel’s performance. Strickland v. Washington, 466 U.S. 668, 

687-88 (1984). To demonstrate prejudice, “[t]he defendant must 

show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. Within the context of 

a guilty plea, prejudice exists if the defendant “show[s] that 

there is a reasonable probability that, but for counsel’s 

errors, he would not have pleaded guilty and would have insisted 

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). 

To establish that he would have proceeded to trial but for 

counsel’s alleged pre-plea error, Solares “must convince the 

court that such a decision would have been rational under the 

circumstances.” United States v. Fugit, 703 F.3d 248, 260 (4th 

Cir. 2012) (internal quotation marks omitted). We have reviewed 

the record and find that it does not conclusively appear from 
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the record that counsel provided ineffective assistance. 

Accordingly, we reject Solares’s ineffective assistance of 

counsel claim on this direct appeal.

We reject Solares’s argument that his plea should be set 

aside and the matter remanded because the magistrate judge 

should have allowed him to withdraw his guilty plea. First, 

Solares never appealed the magistrate judge’s ruling to the 

district court. Accordingly, Solares has waived appellate 

review of this issue. Fed. R. Crim. P. 59; United States v. 

Schronce, 727 F.2d 91, 93–94 (4th Cir. 1984) (“We do not believe

. . . that the [Federal Magistrates] Act can be interpreted to 

permit a party . . . to ignore his right to file objections with 

the district court without imperiling his right to raise the 

objections in the circuit court of appeals.”). 

In any event, we find no error in the magistrate judge’s 

decision to deny Solares’s motion to withdraw. A defendant has 

no absolute right to withdraw his guilty plea, and he bears the 

burden of “show[ing] a fair and just reason” for doing so. Fed. 

R. Crim. P. 11(d)(2)(B); see United States v. Nicholson, 676 

F.3d 376, 383-84 (4th Cir. 2012). This court has identified six 

factors that the district court should evaluate in deciding 

whether to grant a motion for withdrawal of a guilty plea. See

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

magistrate judge, upon reviewing these factors, concluded that 
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Solares failed to make the necessary showing. We find that the 

magistrate judge did not abuse his discretion in denying 

Solares’s motion.

Accordingly, we affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

conclusions are adequately presented in the materials before 

this court and argument would not aid the decisional process. 

AFFIRMED