UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4540

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MAURICE MOUZON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. William D. Quarles, Jr., District Judge.

(1:06-cr-00453-WDQ)

Submitted: September 25, 2008 Decided: October 10, 2008

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John L. Machado, LAW OFFICE OF JOHN L. MACHADO, Washington, D.C.,

for Appellant. Rod J. Rosenstein, United States Attorney, Steven

H. Levin, Jason M. Weinstein, Assistant United States Attorneys,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Maurice Mouzon challenges the district court’s acceptance

of his guilty plea, pursuant to Fed. R. Crim. P. 11, and the denial

of his request to withdraw the plea at sentencing. Mouzon pleaded

guilty to possession with intent to distribute cocaine (Count One),

in violation of 21 U.S.C. § 841(a)(1) (2000), and possession of a

firearm in furtherance of a drug-trafficking crime (Count Two), in

violation of 18 U.S.C. § 924(c)(1)(A)(I) (2000). He was sentenced

to 248 months’ imprisonment in accordance with a stipulation in his

plea agreement, pursuant to Fed. R. Crim. P. 11(c)(1)(C), that such

sentence was appropriate.

Mouzon argues on appeal that the Government did not

present a sufficient factual basis for his guilty plea because the

plea colloquy did not include any evidence that he intended to

distribute cocaine. He also contends that the district court erred

in denying his request to withdraw his guilty plea because, when he

entered his plea at the Rule 11 hearing, he believed the validity

of his prior state-court convictions would be investigated by the

court, possibly resulting in a lower sentence in this case.

“A defendant has no absolute right to withdraw a guilty

plea.” United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003)

(internal citation and quotation marks omitted). Once the district

court has accepted a defendant’s guilty plea, it is within the

court’s discretion whether to grant a motion to withdraw it.
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United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). The

defendant bears the burden of showing a “fair and just reason” for

withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B). “[A]

‘fair and just’ reason . . . is one that essentially challenges

. . . the fairness of the Rule 11 proceeding.” United States v.

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).

In deciding whether to permit a defendant to withdraw his

guilty plea, a district court considers:

(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. 

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)

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

(footnote omitted). However, an appropriately conducted Rule 11

proceeding “raise[s] a strong presumption that the plea is final

and binding.” Lambey, 974 F.2d at 1394; see also United States v.

Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).

Rule 11(b)(3) “ensures that the court make clear exactly

what a defendant admits to, and whether those admissions are

factually sufficient to constitute the alleged crime.” United

States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). “Rule 11

does not require the judge to establish through colloquy that a
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factual basis exists for the plea. The court may conclude that a

factual basis exists from anything that appears on the record.”

Id. (emphasis in original) (citation omitted). The court “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.” United States v. Mitchell, 104 F.3d 649,

652 (4th Cir. 1997).

A district court may not conclude that there is a factual

basis for a plea if an essential element of the offense is not

admitted by the defendant or established in the evidence presented

by the Government. United States v. Mastrapa, 509 F.3d 652, 660

(4th Cir. 2007). “The elements of possession with intent to

distribute of a narcotic controlled substance are as follows: (1)

possession of the narcotic controlled substance, (2) knowledge of

the possession, and (3) intent to distribute the narcotic

controlled substance.” United States v. Randall, 171 F.3d 195, 209

(4th Cir. 1999). “Intent to distribute may be inferred from

possession of . . . a quantity of drugs larger than needed for

personal use.” United States v. Fisher, 912 F.2d 728, 730 (4th

Cir. 1990). We have held that possession of a quantity of cocaine

base slightly over five grams, when combined with testimonial

evidence, was sufficient to support an inference of intent to

distribute. United States v. Lamarr, 75 F.3d 964, 973 (4th Cir.

1996). Possession of large amounts of cash and firearms
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constitutes “additional circumstantial evidence of . . .

involvement in narcotics distribution.” Fisher, 912 F.2d at 731.

Possession of a scale with drug residue on it also constitutes

circumstantial evidence of an intent to distribute narcotics. See

United States v. Harris, 31 F.3d 153, 157 (4th Cir. 1994).

We hold that the district court properly found an

adequate factual basis at the Rule 11 hearing to support an

inference that Mouzon intended to distribute cocaine. The

Government stated that the evidence at trial would have shown that

248 grams of cocaine, over $7000 in cash that constituted drug

proceeds, a digital scale with cocaine residue on it, and a firearm

that the Government could prove Mouzon used in furtherance of drug

trafficking, were discovered in Mouzon’s possession. Mouzon did

not dispute that the evidence would prove any of these facts. The

amount of cocaine discovered in Mouzon’s possession was well above

the five grams of cocaine that this court held supported an

inference of intent to distribute in Lamarr, and the large amount

of cash, firearm, and scale with drug residue on it constitute

circumstantial evidence of an intent to distribute narcotics. The

district court also explained to Mouzon that he was pleading guilty

to possession of cocaine with the intent to distribute, not merely

for personal use, and Mouzon indicated that he understood the

nature of the charge and admitted his guilt. 
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The district court also properly summarized the portion

of the plea agreement in which the parties stipulated that a

sentence of 248 months was the appropriate disposition of this

case, and Mouzon indicated that he understood that portion of the

agreement. At the conclusion of the Rule 11 hearing, Mouzon

informed the court that he was represented by an attorney who was

disbarred during the course of the proceedings when he received two

or three of his prior drug trafficking convictions in state court.

The district court stated that the prior convictions would be

“investigated” but did not indicate that Mouzon could receive a

sentence of less than 248 months’ imprisonment as a result of that

investigation. The district court properly conducted the Rule 11

hearing and did not mislead Mouzon by commenting that his prior

convictions would be “investigated.” Because Mouzon has failed to

show that any of the Moore factors weighed in favor of granting his

motion to withdraw his plea, the district court properly denied it.

Accordingly, we affirm the district court’s judgment. 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