UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-5131

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

ANTONIO MOSCOL, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior 

District Judge. (5:07-cr-00003-F-1) 

Submitted: September 15, 2008 Decided: October 8, 2008 

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

R. Clarke Speaks, SPEAKS LAW FIRM PC, Wilmington, North 

Carolina, for Appellant. George E. B. Holding, United States 

Attorney, Anne M. Hayes, Assistant United States Attorney, 

Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
2 

PER CURIAM: 

 On January 3, 2007, Antonio Moscol was charged with 

two counts of distribution of cocaine base, in violation of 21 

U.S.C.A. § 841(b) (West 2000 & Supp. 2008). The dates of 

offense were June 8, 2006 and June 28, 2006, respectively. 

Moscol pled guilty, without the benefit of a plea agreement, on 

March 5, 2007. However, on August 30, 2007, Moscol filed a 

motion to withdraw his guilty plea. On October 19, 2007, the 

district court entered an order denying Moscol’s motion. On 

November 19, 2007, the district court sentenced Moscol to 108 

months’ imprisonment on both counts to be served concurrently. 

Moscol timely noted his appeal. 

 Moscol first argues on appeal that the district court 

erred in denying his motion to withdraw his guilty plea. 

According to Moscol, it was unreasonable for the district court 

to deny his motion to withdraw his guilty plea because there was 

uncertainty regarding the quantity of crack he sold and because 

the Government would not have suffered prejudice had his motion 

been granted. Moscol’s claim is without merit. 

 This court reviews a district court’s refusal to allow 

a defendant to withdraw a guilty plea for abuse of discretion. 

United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). A 

defendant may withdraw a guilty plea before his sentence is 

imposed if “the defendant can show a fair and just reason for 
3 

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Six 

factors to be considered in granting or denying a motion to 

withdraw a guilty plea are: 

(1) whether the defendant has offered credible 

evidence that his plea was not knowing and 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 waste judicial 

resources. 

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

 This court closely scrutinizes the Rule 11 colloquy 

and attaches a strong presumption that the plea is final and 

binding if the Rule 11 proceeding is adequate. United States v. 

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). 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.” United States 

v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (quotations 

omitted). 

 Prior to accepting Moscol’s guilty plea, the district 

court conducted a thorough Rule 11 hearing, during which the 

district court explained to Moscol the elements of the two 

counts in the indictment and the potential penalties Moscol 

faced upon conviction. Moscol indicated to the court that he 
4 

understood the elements of the offenses and the potential 

penalties he faced. The district court then asked Moscol 

whether he distributed more than five grams of crack on June 8 

and 28, 2006, to which Moscol replied in the affirmative. 

 In the district court, Moscol had argued that, 

although he received the first measurement of drug weight taken 

by the Raleigh Police Department (“RPD”) and the measurement of 

drug weight taken by the City County Bureau of Identification 

(“CCBI”) prior to pleading guilty, he would not have pled guilty 

if he had received a second measurement of drug weight conducted 

by the RPD. The district court properly characterized Moscol’s 

argument as “specious.” The minor discrepancies reflected by 

the final RPD measurements had no bearing on Moscol’s guilt or 

innocence as they were not material to any element of his 

crimes. Also, the drug weight discrepancies did not affect his 

statutory sentencing range, which was determined by the 

threshold quantities alleged in the indictment and admitted by 

Moscol, rather than the quantities as measured by the RPD and 

CCBI. Finally, the last measurements by the RPD had no effect 

on Moscol’s sentencing guidelines range as the district court 

used the lower and more accurate measurements taken by the CCBI 
5 

in calculating Moscol’s advisory guidelines range.1 Accordingly, 

Moscol’s claim is without merit.2 

 Moscol next argues that there was insufficient 

evidence to support the district court’s determination of drug 

weight. A district court’s determination of drug quantity is a 

factual finding, which this court reviews for clear error. 

United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004). 

This deferential standard of review requires reversal only if 

this court is “left with the definite and firm conviction that a 

mistake has been committed.” United States v. Stevenson, 396 

F.3d 538, 542 (4th Cir. 2005)(quoting Anderson v. Bessemer City, 

470 U.S. 564, 573 (1985)). Agent Bommer testified that she 

weighed the crack sold by Moscol without its packaging and using 

calibrated scales and that the drugs weighed 27.9 grams and 25.7 

grams respectively. The district court was entitled to credit 

her testimony. Moreover, Moscol’s entire argument on appeal is 

 1

CCBI forensic chemist Amy Bommer testified that in most 

cases, the weight as measured by the police does not equal the 

weight determined by the CCBI because officers who initially 

take possession of the drugs usually weigh them in their 

packaging and do not use properly calibrated scales. According 

to Agent Bommer’s testimony, the differences in weight are 

easily attributable to the fact that Bommer did not weigh the 

drugs in their packaging, and she used a certified and properly 

calibrated scale. 

2

The Government, in its written response to Moscol’s motion, 

admitted that it would not suffer significant prejudice if 

Moscol’s motion were granted. 
6 

based on what may have occurred rather than on facts in the 

record. Accordingly, his claim is without merit. We therefore 

deny his motion to supplement his appellate brief and his motion 

to file a pro se supplemental brief and affirm the judgment of 

the district court. We dispense with oral argument as the facts 

and legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

AFFIRMED