UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4479

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TRACY LYNN PETTY,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:04-cr-00250-5)

Submitted: May 31, 2007 Decided: June 4, 2007

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Frank A. Abrams, Arden, North Carolina, for Appellant. Gretchen

C.F. Shappert, United States Attorney, Thomas Tullidge Cullen,

Assistant United States Attorney, Charlotte, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
1Pursuant to the federal Sentencing Guidelines, Petty would

have been subject to an advisory Guidelines range of 108 to 135

months’ imprisonment, but for the statutory mandatory minimum

twenty-year sentence applicable to her crime.

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PER CURIAM:

Tracy Lynn Petty pled guilty, pursuant to a written plea

agreement, to conspiracy to possess with intent to distribute

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).

The district court sentenced Petty to the statutory mandatory

minimum sentence applicable to the conviction, 240 months’

imprisonment. Petty challenges her conviction and sentence,

asserting on appeal that the district court erred in denying her

motion to withdraw her guilty plea. Petty contends that her plea

was not knowing and voluntary because it was premised on the fact

that her attorney and the prosecutor stated that she would be

sentenced pursuant to the sentencing guidelines.1

 She claims that

the prosecutor made inconsistent statements as to the applicability

of the statutory mandatory minimum sentence, and that it was her

understanding that the statutory mandatory minimum sentence was

discretionary.

We reviewed for abuse of discretion the district court’s

denial of a motion to withdraw a guilty plea. United States v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). Our review of the

record discloses that the district court properly determined that

Petty clearly was aware of the statutory mandatory minimum sentence
2

Specifically, the district court determined that Petty failed

to offer credible evidence that her plea was not knowing and

voluntary, that she had not credibly asserted her legal innocence,

that there had been a significant five-month delay between Petty’s

plea and her subsequent motion to withdraw, that Petty had received

close assistance of competent counsel, that the Government would be

prejudiced by a withdrawal, and that a withdrawal of the plea would

waste judicial resources.

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and its implications at the time she pled guilty. The district

court carefully considered each of the factors set forth in United

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

determined that Petty failed to meet her burden of demonstrating

that a “fair and just reason” supported her request to withdraw her

plea.2 Id.

Our review of the record reveals that the explicit terms

of the plea agreement, which terms were reviewed with Petty by the

court during her Fed. R. Crim. P. 11 proceeding, provided that the

statutory mandatory minimum sentence of twenty years applied to

Petty’s crime, that no recommendations or agreements by the United

States were binding on the sentencing court, and that the district

court would impose a sentence no lower than the statutory minimum.

Further, Petty attested during the Rule 11 hearing that she had

reviewed the terms of the plea agreement with her attorney, that

she understood the terms of the agreement, as reviewed with her by

the court, that she was satisfied with and grateful for the

services of her attorney and his willingness to answer all her
3

To the extent Petty seeks to raise here a claim that her

attorney was ineffective, such a claim is not cognizable on direct

review unless the record conclusively establishes ineffective

assistance of counsel, which this record does not. United States

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

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questions,3 that she was guilty of the crime to which she was

pleading guilty, and that she was entering into the plea freely and

voluntarily. Petty is bound by the statements she made at her Rule

11 hearing. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). 

Accordingly, we affirm the district court’s denial of

Petty’s motion to withdraw her plea, and affirm her conviction and

sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED