UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4964

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

COREY DEWAYNE KERR,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:11-cr-00219-NCT-1)

Submitted: June 13, 2013 Decided: September 23, 2013

Before GREGORY, SHEDD, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Harvey Alexander Carpenter, IV, LAW OFFICES OF H.A. CARPENTER 

IV, Greensboro, North Carolina, for Appellant. Ripley Eagles 

Rand, United States Attorney, Graham Tod Green, Assistant United 

States Attorney, Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Defendant Corey Dewayne Kerr pled guilty to maintaining a 

residence for the purpose of manufacturing or distributing 

cocaine base. Approximately six months later, Defendant moved 

to withdraw his plea, which the district court denied. Finding 

Defendant accountable for 2,414 grams of crack cocaine, the 

district court sentenced him to 240 months in prison. On 

appeal, Defendant argues that the district court erred by 

denying his motion to withdraw his plea and by finding him 

accountable for 2,414 grams of crack cocaine. For the reasons 

discussed below, we affirm.

I.

Following a law enforcement investigation of cocaine 

distribution in two North Carolina counties, Defendant was 

indicted for conspiracy to distribute 280 grams or more of 

cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). 

Seven months later, the government filed a bill of information 

further charging Defendant with maintaining three residences for 

the purpose of manufacturing or distributing cocaine base in 

violation of 21 U.S.C. §§ 856(a)(1) and (b). In a written plea 

agreement, Defendant agreed to plead guilty to maintaining a 

drug-involved residence in exchange for the dismissal of the 

conspiracy to distribute charge. 
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At Defendant’s plea hearing, the district court conducted a 

Rule 11 plea colloquy during which it informed Defendant that 

his attorney could not, at that point, accurately calculate his 

sentencing guideline range. Later during the hearing, 

Defendant’s attorney agreed that there was a factual basis for 

Defendant’s plea, but noted that Defendant did not “agree to all 

of the time frames and [drug] quantities” alleged by the 

government’s witness. J.A. 61. Defendant then pleaded guilty 

at the plea hearing.

Subsequently, Defendant sought to withdraw his guilty plea, 

alleging that his attorney mislead him into pleading guilty by 

failing to inform him about possible sentencing outcomes. 

Following a hearing, the district court found that Defendant was 

properly advised that his attorney could not correctly estimate 

his sentencing guidelines range before his guilty plea and that 

his actual sentence could be above or below that range. The 

court therefore denied Defendant’s withdrawal motion. 

At Defendant’s sentencing hearing, several witnesses 

testified about receiving various amounts of crack cocaine from 

Defendant. Based on that testimony, the district court found 

Defendant accountable for 2,414 grams of crack cocaine. The 

court then sentenced Defendant to 240 months imprisonment. 

On appeal, Defendant contends that the district court erred 

by denying his motion to withdraw his guilty plea. He further 
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argues that the district court erred by finding him accountable 

for 2,414 grams of crack cocaine. 

II.

A.

Defendant first challenges the district court’s denial of 

his motion to withdraw his guilty plea. We review the district 

court’s denial of Defendant’s motion for abuse of discretion. 

See United States v. Ubakanma, 215 F.3d 423, 424 (4th Cir.

2000).

A defendant may withdraw a guilty plea before sentencing if 

he can show a fair and just reason for requesting the 

withdrawal. United States v. Nicholson, 676 F.3d 376, 383 (4th 

Cir. 2012); Fed. R. Crim. P. 11(d)(2)(B). A properly conducted 

Rule 11 guilty plea colloquy raises a strong presumption that 

the plea is final and binding. Id. at 384. When considering a 

withdrawal motion, courts typically consider (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 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 
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waste judicial resources. United States v. Moore, 931 F.2d 245, 

248 (4th Cir. 1991). 

Defendant contends that he would not have pled guilty if 

his attorney had properly advised him about the possible 

sentencing outcomes. Because Defendant does not challenge the 

district court’s Rule 11 colloquy, there is a strong presumption 

that Defendant’s plea is valid and binding. See Nicholson, 676 

F.3d at 384. 

Turning to the Moore factors, we conclude that they do not 

provide a fair and just reason for withdrawing Defendant’s 

guilty plea. Regarding the first and fourth factors, while 

Defendant argues that his attorney was ineffective, he has not 

offered credible evidence that his plea was unknowing or 

involuntary. The district court told Defendant during his plea 

hearing that it would later determine his actual sentence, 

ranging from zero to twenty years, by applying federal 

sentencing laws. Further, it told Defendant that “there is no 

way anybody today can accurately calculate whatever your Federal 

Sentencing Guideline Range may eventually be . . . . Your lawyer 

may be right, but he or she may be way off. . . . [I]f anybody 

has suggested you’re going to receive a sentence of whatever, 

understand that’s just an estimate.” J.A. 56-57. As to the 

remaining relevant factors, they do not favor Defendant: 

Defendant has not asserted his legal innocence and he filed his 
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withdrawal motion approximately six months after his guilty 

plea. Accordingly, we conclude that the district court did not 

abuse its discretion by denying Defendant’s motion to withdraw 

his guilty plea.

B.

Defendant next contends that the district court erred by 

finding him accountable for 2,414 grams of crack cocaine. 

We review a sentence for abuse of discretion. Gall v. 

United States, 552 U.S. 38, 51 (2007). Under this standard, we 

first ensure that the district court committed no significant 

procedural error, such as improperly calculating the Sentencing 

Guidelines range. Id. In assessing whether a sentencing court 

properly applied the Guidelines, we review the court’s factual 

findings for clear error. United States v. Osborne, 514 F.3d 

377, 387 (4th Cir. 2008). If a sentence is procedurally 

reasonable, we then consider the substantive reasonableness of 

the sentence under an abuse-of-discretion standard. Gall, 552 

U.S. at 51.

For sentencing purposes, the government must prove the drug 

quantity attributable to a particular defendant by a 

preponderance of the evidence. United States v. Bell, 667 F.3d 

431, 441 (4th Cir. 2011). The district court is afforded broad 

discretion as to what information to credit in making its drug 
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quantity calculations. United States v. Cook, 76 F.3d 596, 604 

(4th Cir. 1996). When the drug quantity is not proven by actual 

seizures or comparable direct evidence, the sentencing court may 

approximate the quantity. Bell, 667 F.3d at 441. While courts 

can rely on lay witness testimony as to the drug quantity, 

courts should sentence at the low end of the witness’s range if 

the witness’s approximation is uncertain. Id. 

At his sentencing hearing, Defendant testified that he sold 

approximately 90 grams of crack cocaine during the relevant time 

period. But the government’s three witnesses testified that 

Defendant sold them in excess of a total of 3,000 grams of crack 

cocaine during that time. The district court believed the 

government’s witnesses and disbelieved Defendant’s testimony. 

Moreover, in calculating the drug amount attributable to 

Defendant, the district court “gave [Defendant] the benefit” 

where the witnesses testified to a drug quantity range. J.A. 

263. Given these facts, we cannot conclude that the district 

court clearly erred by finding him accountable for 2,414 grams 

of crack cocaine. 

III.

For the foregoing reasons, we affirm Defendant’s conviction 

and sentence. 

AFFIRMED