UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4937

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

WILLIAM HOWARD O’NEIL, JR., 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:07-cr-00088-LHT-1) 

Argued: September 30, 2009 Decided: November 23, 2009 

Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan 

CURRIE, United States District Judge for the District of South 

Carolina, sitting by designation. 

Affirmed by unpublished opinion. Judge Duncan wrote the 

opinion, in which Judge Motz and Judge Currie joined. 

ARGUED: Andrew Brady Banzhoff, Asheville, North Carolina, for 

Appellant. Donald David Gast, OFFICE OF THE UNITED STATES 

ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:

Gretchen C. F. Shappert, United States Attorney, Charlotte, 

North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
DUNCAN, Circuit Judge: 

 William Howard O’Neil, Jr., appeals his conviction and 

sentence for bank robbery with a dangerous weapon in violation 

of 18 U.S.C. § 2113(a), (d). In this appeal, O’Neil challenges 

the district court’s order vacating a magistrate judge’s sua 

sponte rescission of the acceptance of his guilty plea, and its 

order upholding the validity of his Rule 11 hearing. For the 

reasons that follow, we affirm. 

I. 

 In July 2007 a man wearing a black wig robbed a bank in 

Morganton, North Carolina. During the robbery, the man held 

what appeared to be a real gun to the head of one of the 

tellers. He ultimately fled in a white minivan. Some time 

later, police officers observed a white minivan parked outside 

the home of O’Neil’s mother. The officers obtained consent to 

search the home and found a pellet gun during their search. The 

police, however, did not arrest O’Neil at that time because he 

did not match the description of the robber. Only after 

watching a videotape of the robbery did the officers arrest 

O’Neil. 

 A federal grand jury indicted O’Neil on October 1, 2007. 

The indictment alleged that O’Neil committed a bank robbery in 

violation of 18 U.S.C. § 2113(a), and that he assaulted a teller 

2 
with a dangerous weapon during the commission of the robbery in 

violation of § 2113(d). The district court referred the matter 

to a magistrate judge, who appointed counsel for O’Neil on 

October 30, 2007. On December 26, 2007, the government filed a 

plea agreement with the court in which O’Neil stipulated that 

there was a factual basis for his guilty plea and agreed to 

defer the factual-basis presentation required by Federal Rule of 

Criminal Procedure 11(b)(3) until sentencing.1 Then, on December 

27, 2007, the magistrate judge held a Rule 11 hearing at which 

O’Neil pleaded guilty. During this hearing, O’Neil stated that 

he had committed the acts charged in the indictment, that his 

plea was voluntary, and that he was satisfied with the 

representation of his attorney. Despite these statements, 

O’Neil later wrote a letter to the district judge complaining 

about his attorney’s performance. 

 1

 The relevant section of the plea agreement reads as 

follows: 

With the Court’s permission, the factual basis, as 

required by Fed. R. Crim. P. 11(b)(3), will be 

deferred until the time of sentencing. The defendant 

stipulates that there is a factual basis for the plea 

of guilty and that the Court may use the offense 

conduct set out in the Presentence Report, except any 

facts to which the defendant has objected, to 

establish a factual basis for the defendant’s plea. 

J.A. 13 (emphasis added).

3 
 As a result of the letter, the magistrate judge held a 

status hearing on January 9, 2008. During that hearing, O’Neil 

stated that he had been misled by counsel into pleading guilty 

and that he lied at the Rule 11 hearing when he admitted to 

committing the crimes charged. Counsel offered testimony 

refuting O’Neil’s assertions regarding her performance. The 

magistrate judge found that O’Neil’s complaints were baseless 

but appointed a new attorney in an abundance of caution. On 

January 22, 2008, during a second status hearing, the magistrate 

judge asked O’Neil’s new attorney whether O’Neil wanted to 

withdraw his guilty plea. The attorney responded that he 

believed his client had some interest in doing so, but that he 

needed to talk to him first. At that same hearing, before the 

new counsel spoke with O’Neil, the magistrate judge rescinded 

the acceptance of the plea sua sponte, based on his belief that 

the plea could not stand after O’Neil repudiated his admission 

of guilt. 

 The government challenged the magistrate judge’s decision 

before the district court. The district court vacated it and 

reinstated the guilty plea. In response, O’Neil moved the 

district court to withdraw his guilty plea and requested de novo 

review of the Rule 11 proceeding. The district court denied 

O’Neil’s motion to withdraw the plea and upheld the validity of 

the Rule 11 proceeding. This appeal followed. 

4 
II. 

 O’Neil argues that the magistrate judge properly vacated 

his guilty plea because, after O’Neil repudiated his admission 

of guilt, there was no longer a factual basis for the plea. He 

further argues that the district court erred in failing to make 

a determination that a sufficient factual basis existed for 

acceptance of the guilty plea when reviewing the Rule 11 

proceeding de novo. We analyze each of O’Neil’s contentions in 

turn. 

A. 

 We first consider the district court’s order vacating the 

magistrate judge’s sua sponte decision and reinstating O’Neil’s 

guilty plea. A district court reviews a magistrate judge’s Rule 

11 decisions de novo. United States v. Benton, 523 F.3d 424, 

432 (4th Cir. 2008). We review for abuse of discretion a 

district court’s decision regarding whether to allow a guilty 

plea to stand. See id. at 434-35 (reviewing for abuse of 

discretion a district court’s finding that there was no fair and 

just reason to vacate a guilty plea). “A district court abuses 

its discretion when it acts arbitrarily or irrationally, fails 

to consider judicially recognized factors constraining its 

exercise of discretion, relies on erroneous factual or legal 

premises, or commits an error of law.” United States v. 

5 
Delfino, 510 F.3d 468, 470 (4th Cir. 2007). O’Neil argues that 

the district court abused its discretion when it found the 

magistrate judge’s vacatur to be improper and beyond the 

magistrate’s authority. O’Neil asserts that, because his 

repudiation eliminated the factual basis for the plea, the 

magistrate judge’s vacatur was justified. We disagree for the 

following reasons. 

 First, district courts have broad authority to overturn any 

Rule 11 decision made by a magistrate judge. This authority is 

firmly rooted in the statute authorizing magistrate judges’ 

functions. “The Federal Magistrates Act grants district courts 

authority to assign magistrates certain described functions as 

well as ‘such additional duties as are not inconsistent with the 

Constitution and laws of the United States.’” Peretz v. United 

States, 501 U.S. 923, 924 (1991) (quoting 28 U.S.C. 

§ 636(b)(3)). We have found that “conducting a plea colloquy 

could be considered an ‘additional duty’ within the meaning of 

28 U.S.C. § 636(b)(3).” Benton, 523 F.3d at 431. We have also 

noted “the litigants’ right to seek de novo review of the 

[magistrate judge’s] Rule 11 proceedings as a matter of right.” 

Id. (emphasis omitted). Indeed, as the Supreme Court has 

explained, the reason why delegation of certain proceedings to 

magistrate judges does not run afoul of the Constitution is that 

“the entire process” before the magistrate judge “takes place 

6 
under the district court’s total control and jurisdiction.” 

Peretz, 501 U.S. at 937 (citing United States v. Raddatz, 447 

U.S. 667, 681 (1980)). See also Benton, 523 F.3d at 430. The 

Court has further explained the broad discretion of the district 

judge with regard to proceedings before a magistrate judge as 

follows: 

The judge may initially decline to refer any matter to 

a magistrate. When a matter is referred, the judge 

may freely reject the magistrate’s recommendation. He 

may rehear the evidence in whole or in part. He may 

call for additional findings or otherwise “recommit 

the matter to the magistrate with instructions.” 

Peretz, 501 U.S. at 938 (quoting Raddatz, 447 U.S. at 685 

(Blackmun, J., concurring) (quoting 28 U.S.C. § 636(b)(1)). 

Accordingly, the district court here had full authority to 

overturn the magistrate judge’s sua sponte decision to rescind 

the acceptance of the guilty plea. 

 Second, the district court was justified in overturning the 

plea rescission on these facts because the magistrate judge’s 

decision was based on incorrect procedural grounds. The only 

reason the magistrate judge vacated the plea was that he 

believed he was obligated to do so once the factual basis for 

the plea disappeared as a result of O’Neil’s repudiation. This 

view misinterprets the requirements of Rule 11. Under Rule 

11(b)(3), “[b]efore entering judgment on a guilty plea, the 

court must determine that there is a factual basis for the 

7 
plea.” Fed. R. Crim. Pro. 11(b)(3). As we have previously 

explained: 

The requirement to find a factual basis is designed to 

“protect a defendant who is in the position of 

pleading voluntarily with an understanding of the 

nature of the charge but without realizing that his 

conduct does not actually fall within the charge.” 

United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007) 

(quoting Fed. R. Crim. Pro. 11 advisory committee’s note). 

However, “[b]ecause judgment is not entered until after 

sentencing, a court may defer the finding of a factual basis for 

the plea until [that time].” United States v. Martinez, 277 

F.3d 517, 522 n.4 (4th Cir. 2002).2 This court has specifically 

explained that the district court “is not required to make such 

a determination at the outset of the Rule 11 proceedings; it may 

defer its inquiry until sentencing.” Id. at 531. See also

United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008). 

Therefore, the district court did not abuse its discretion in 

finding that, although O’Neil repudiated his admission of guilt, 

the plea did not have to be vacated at that point. 

 2 Martinez cited a previous version of Rule 11 that stated: 

“[N]otwithstanding the acceptance of a plea of guilty, the court 

should not enter a judgment upon such plea without making such 

inquiry as shall satisfy it that there is a factual basis for 

the plea.” 277 F.3d 517, 522 n.4. However, Martinez’s analysis 

applies with equal force to the new wording of Rule 11. See

United States v. Ketchum, 550 F.3d 363, 266-67 (4th Cir. 2008). 

8 
 Third, the district court was correct to conclude that the 

magistrate judge had no legal authority to vacate the plea. We 

have explained that “[b]ecause it is essential to an orderly 

working of the criminal justice system that guilty pleas 

tendered and accepted in conformity with Rule 11 can be presumed 

final, it is the defendant’s burden to demonstrate that [he] 

should be permitted to withdraw [his] plea.”3 United States v. 

Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995). At the time of the 

magistrate judge’s decision, O’Neil had not moved to withdraw 

the plea. In fact, when asked whether O’Neil wanted to withdraw 

the plea, counsel responded that he believed his client had some 

interest in doing so, but that he needed to talk to him first. 

Not only had O’Neil not met his burden of justifying withdrawal 

of the plea at the time of vacatur, it was not even clear that 

he wanted to withdraw the plea at all. The magistrate judge 

nonetheless proceeded to vacate the plea because, thinking it 

improper to allow the plea to stand without a factual basis, he 

concluded that such a result was “fair and just.” J.A. 61-62. 

 3

 We note that O’Neil does not challenge the propriety of 

any other aspect of the original Rule 11 proceeding, during 

which he unequivocally admitted his guilt. In fact, O’Neil 

concedes that the district court “properly analyzed” the issues 

of “whether the proceeding ensured that the defendant was 

competent, and that his plea was knowingly and voluntarily 

entered.” Appellant’s Br. at 10-11. O’Neil’s only argument is 

that the factual basis for the plea disappeared once he 

repudiated his admission of guilt. 

9 
 As we discussed above, the magistrate judge only has such 

authority as the district court delegates to him. See Peretz, 

501 U.S. at 924 (quoting 28 U.S.C. § 636(b)(3)). Although the 

magistrate judge was authorized to conduct the plea hearing, 

there has been no showing he was ever authorized to vacate an 

existing plea. Given the presumption of finality that attaches 

to a guilty plea, and absent any clear delegation of authority 

from the district court to the magistrate judge to vacate an 

existing plea, the district court was correct to hold that the 

magistrate judge exceeded his authority. 

B. 

 O’Neil further argues that the district court erred in not 

evaluating whether a factual basis for the plea was established 

at the time of the Rule 11 hearing.4 He asserts as follows: 

 4

 In reviewing the Rule 11 proceeding de novo, the role of 

the district judge is not to conduct the proceeding anew. Such 

a rule would create a serious risk of gamesmanship in the 

system. It would incentivize defendants to plead guilty before 

a magistrate judge, see what benefit they could derive from 

doing so, and, if they were unsatisfied with the result, simply 

request a new hearing before the district judge and plead not 

guilty. That would clearly obliterate the “strong presumption 

that the plea is final and binding.” United States v. Bowman, 

348 F.3d 408, 414 (4th Cir. 2003). Furthermore, this court has 

found that “for the purposes of Rule 11 . . . district judges 

retain the authority to review the magistrate judge's actions de 

novo.” Benton, 523 F.3d at 429. Therefore it is clear that, in 

conducting a de novo review, the district judge’s role is only 

(Continued) 

10 
The defendant acknowledges that the District Court 

ostensibly examined the factual basis at the time of 

the sentencing.5 However, the defendant does not 

concede that this later finding of a factual basis 

alleviates the District Court from its[] obligations 

under Osborne to determine if a sufficient factual 

basis existed at the time of the plea hearing to 

support accepting the guilty plea.6 

Appellant’s Br. at 11 (footnotes added and citation omitted) 

(referencing United States v. Osborne, 345 F.3d 281 (4th Cir. 

2003)). This argument is without merit. As explained above, a 

court is not required to establish a factual basis at the time 

of the plea hearing. See Martinez, 277 F.3d at 531; Ketchum, 

 

to determine whether the Rule 11 hearing was proper at the time 

it was conducted. 

5 Although the district court acted within the scope of its 

authority, we think it appropriate to sound a cautionary note 

about the process involved for future reference. While O’Neil 

stipulated to deferring the factual basis at the plea hearing 

until sentencing--and even stipulated to the sufficiency of the 

facts set out in a presentence report that had yet to be 

prepared--his attorney stated that O’Neil declined to stipulate 

to the factual basis at sentencing. The mere stipulation in the 

plea agreement, without any actual facts being referenced or 

agreed upon, would probably not have sufficed at sentencing over 

O’Neil’s objection. Here, we can rely on the fact, set forth in 

the PSR and not objected to, that O’Neil was plainly indicated 

on the bank videotape. In the future, however, reference to the 

facts supporting the factual basis to which the parties 

stipulated at the Rule 11 hearing would be helpful should a 

challenge arise. 

6

 Nothing in Osborne, the case referenced by O’Neil in the 

paragraph quoted above, suggests otherwise. Osborne simply 

stands for the proposition that a de novo review by the district 

court of a magistrate judge’s Rule 11 proceeding is not 

constitutionally required unless it is specifically requested by 

the litigants. Osborne, 345 F.3d at 290. 

11 
550 F.3d at 367. Instead, it can defer its inquiry until the 

time of sentencing. Id. In fact, the parties stipulated to the 

deferral of the factual-basis inquiry in the plea agreement 

filed with the court prior to the initial Rule 11 hearing. 

 Accordingly, because the factual basis inquiry for a guilty 

plea can be and indeed was properly deferred until sentencing, 

the district court did not err in failing to determine whether 

such a basis had been established at the time of the plea 

hearing. 

C. 

 Finally, we turn to the denial of O’Neil’s motion to 

withdraw his guilty plea. O’Neil does not directly challenge 

that decision, and indeed attempted to distance himself from the 

issue at oral argument. In his brief, however, O’Neil suggests 

that, in reviewing the motion to withdraw the plea, the district 

court was responsible for determining whether a factual basis 

existed for it. We therefore address the issue in an abundance 

of caution. 

 As explained above, it is well settled that, when a 

defendant moves to withdraw a plea, he bears the burden of 

establishing a fair and just reason for the withdrawal. Bowman, 

348 F.3d at 413-14. See also Fed. R. Crim. Pro. 11(d)(2)(B). 

O’Neil has made no attempt to do so, either before the 

12 
magistrate judge, the district court, or here. Our independent 

review also reveals a failure of proof as to this issue. 

 We have explained that “[a] defendant has no ‘absolute 

right’ to withdraw a guilty plea, and the district court has 

discretion to decide whether a ‘fair and just reason’ exists 

upon which to grant a withdrawal.” Bowman, 348 F.3d at 413 

(quoting United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 

2000)). Moreover, 

when a district court considers the plea withdrawal 

motion, “‘the inquiry is ordinarily confined to 

whether the underlying plea was both counseled and 

voluntary’ . . . . A voluntary and intelligent plea 

of guilty ‘is an admission of all the elements of a 

formal criminal charge,’ . . . and constitutes an 

admission of all ‘material facts alleged in the 

charge.’” 

Bowman, 348 F.3d at 414 (quoting United States v. Willis, 992 

F.2d 489, 490 (4th Cir. 1993)) (alteration in original). 

Therefore, “a properly conducted Rule 11 guilty plea colloquy 

leaves a defendant with a very limited basis upon which to have 

his plea withdrawn.” Id.

 In determining whether the defendant has met his burden of 

establishing the “fair and just reason” for the withdrawal, 

courts consider various factors, including: 

(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 

13 
close assistance of competent counsel, (5) whether 

withdrawal will cause prejudice to the government, and 

(6) whether it will inconvenience the court and waste 

judicial resources. 

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

Moore factors “that speak most straightforwardly to the question 

whether the movant has a fair and just reason” to withdraw the 

plea “are the first, second, and fourth.” Sparks, 67 F.3d at 

1154. The rest “are better understood as countervailing 

considerations that establish how heavily the presumption should 

weigh in any given case.” Id. O’Neil only ever raised, 

implicitly, factors one, two, and four before the magistrate 

judge and the district court. 

 With regard to the first factor, O’Neil argued before the 

magistrate judge that he would not have pleaded guilty but for 

the fact that his first attorney misled him. In general, “[a] 

defendant who presents a reason for withdrawing his plea that 

contradicts the answers he gave at a Rule 11 hearing faces an 

uphill battle in persuading the judge that his purported reason 

for withdrawing his plea is ‘fair and just.’” United States v. 

Trussel, 961 F.2d 685, 690 (7th Cir. 1992). See also United 

States v. Wells, No. 94-5666, 1996 U.S. App. LEXIS 7600, at *14 

(4th Cir. Apr. 12, 1996). In the present case, during the 

initial Rule 11 hearing, O’Neil stated that he was “entirely 

satisfied” with his attorney. J.A. 91-92. He has failed to 

14 
establish, on the basis of any record evidence, that his former 

attorney actually misled him; instead, he simply asks us to 

accept his allegation.7 The magistrate judge found that O’Neil’s 

allegations about his attorney were “baseless,” J.A. 49, and 

explained that his decision to grant new counsel was “not due to 

anything that [counsel] did,” J.A. 42. The magistrate judge 

emphasized that his counsel had “gone over and above what any 

lawyer would do . . . to represent a client.” J.A. 42. We will 

not allow the first Moore factor to turn on a litigant’s wholly 

unsupported bare assertion, particularly when it is adverse to 

an existing finding made by a judge who administered the 

proceeding and who had the opportunity to evaluate counsel’s 

performance. We therefore find that the first Moore factor 

counsels against permitting withdrawal of the plea. 

 In order to satisfy the second Moore factor, a defendant 

“must do more than just demonstrate that [he] had a bona fide 

 7 O’Neil argued before the magistrate judge that his counsel 

misled him into pleading guilty in “the way she explained about 

the jury” to him, J.A. 202, and “wasn’t truthful to [him] about 

her investigation,” J.A. 200. His counsel explained her 

interactions with O’Neil and explained why her statements to him 

had not been misleading. The magistrate judge found O’Neil’s 

accusations to be unfounded. The record supports this finding 

and there is therefore no reason to disturb the magistrate 

judge’s credibility determination. See Columbus-Am. Discovery 

Group v. Atl. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995) 

(“Absent extraordinary circumstances, we will not disturb a 

fact-finder’s credibility determinations.”). Therefore, for our 

purposes, O’Neil did not successfully establish that he was 

misled by his counsel.

15 
belief that [his] actions were lawful[;] [he] must show that 

such a belief would translate into a credible assertion of legal 

innocence.” Sparks, 67 F.3d at 1153. Here, O’Neil never 

explained his assertion of innocence, much less established that 

his belief of innocence was legally justified. A defendant’s 

bare allegation of innocence does not, without more, satisfy the 

second Moore factor. See United States v. Cray, 47 F.3d 1203, 

1209 (D.C. Cir. 1995) (“A defendant appealing the denial of his 

motion to withdraw a guilty plea . . . must do more than make a 

general denial [of guilt].”). We thus find that O’Neil has not 

satisfied the second Moore factor. 

 With regard to the fourth Moore factor, O’Neil must show: 

“(1) that his counsel’s performance ‘fell below an objective 

standard of reasonableness’ and (2) that ‘there [was] a 

reasonable probability that, but for counsel’s error, he would 

not have pleaded guilty and would have insisted on going to 

trial.’” United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 

1989) (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)) 

(alteration in original). As explained above, O’Neil showed 

neither. The magistrate judge found O’Neil’s complaints 

regarding counsel to be baseless and found that counsel more 

than adequately represented him. There is no other evidence in 

the record that his counsel’s performance “fell below an 

16 
17 

objective standard of reasonableness” or that she misled him 

into pleading guilty. Bowman, 348 F.3d at 416. 

 In sum, O’Neil did not successfully establish any of the 

Moore factors or show any “fair and just” reason for the 

withdrawal of his plea before the magistrate judge or before the 

district court. We thus find that the district court did not 

err in denying O’Neil’s motion to withdraw his guilty plea. 

 III. 

 Accordingly, for the reasons set forth above, we affirm the 

district court’s opinion overturning the magistrate judge’s sua 

sponte vacatur of the guilty plea, its finding that the Rule 11 

proceeding was proper, and its denial of O’Neil’s motion to 

withdraw the plea. 

AFFIRMED