UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4794

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VEOTIS HARDING, a/k/a Vito,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-02-191-BO)

Submitted: July 13, 2005 Decided: August 24, 2005

Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Walter H. Paramore, III, LAW OFFICES OF WALTER H. PARAMORE, III,

Jacksonville, North Carolina, for Appellant. Frank D. Whitney,

United States Attorney, Anne M. Hayes, Christine Witcover Dean,

Assistant United States Attorneys, Raleigh, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Veotis Harding pled guilty without a plea agreement to

all thirty-five counts of an indictment charging him with

conspiracy, racketeering, and money laundering and was sentenced to

forty years imprisonment. Harding appeals, claiming that the

district court abused its discretion in denying his motions for

appointment of a mental health expert and for withdrawal of his

guilty plea, and his attorney’s motion to withdraw made at

sentencing. Harding also challenges the constitutionality of his

sentence in light of the Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004). For the reasons that follow, we

affirm Harding’s conviction, but vacate his sentence and remand for

resentencing. 

Harding’s conviction arose out of his operation of an

“escort service” in Fayetteville, North Carolina, from 1996 to

2002, during which he recruited numerous very young girls and often

forced their participation in his prostitution business by use of

violence and drugs. On January 15, 2003, approximately three

months after the Fed. R. Crim. P. 11 hearing, Harding filed a pro

se motion to withdraw his guilty plea. On the same day, his

attorney filed a motion for appointment of a mental health expert

to assess Harding’s mental capacity. The district court denied

both motions. At the beginning of his sentencing hearing, Harding

made an oral motion to relieve his counsel; the motion was denied.
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A district court may grant a motion for a mental health

examination if there is “reasonable cause to believe that the

defendant may presently be suffering from a mental disease or

defect.” 18 U.S.C. § 4241(a) (competence to stand trial),

§ 4244(a) (competence to be sentenced); see United States v.

General, 278 F.3d 389, 397 (4th Cir. 2002). To determine if

“reasonable cause existed, [the court] look[s] to all of the record

evidence pertaining to the defendant’s competence, including: (1)

any history of irrational behavior; (2) the defendant’s demeanor at

and prior to sentencing; and (3) prior medical opinions on

competency.” Id. at 397. 

Here, the presentence report indicated that Harding had

been treated in the past for drug abuse and that he was diagnosed

with a learning disability in 1973. However, nothing in the report

mentioned that Harding’s competence had ever been questioned.

Moreover, Harding’s statements at his sentencing hearing indicate

that he fully understood the nature of the proceedings and that he

assisted his attorney in preparing for the hearing. Accordingly,

we find that the district court did not abuse its discretion in

denying Harding’s motion for appointment of a mental health expert.

The district court’s denial of a motion to withdraw a

guilty plea is reviewed for abuse of discretion. United States v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant does not

have an absolute right to withdraw a guilty plea, even before
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sentencing. United States v. Moore, 931 F.2d 245, 248 (4th Cir.

1991). Rather, the defendant bears the burden of demonstrating

that a “fair and just reason” supports his request to withdraw his

plea. Id. Factors considered in determining whether a defendant

has shown a fair and just reason for withdrawing his guilty plea

include: (1) whether the defendant has offered credible evidence

that the plea was not knowing or 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 the defendant 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. Id. Although all the

factors in Moore must be given appropriate weight, the central

question is whether the Rule 11 hearing was properly conducted.

United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). 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)(en banc). Applying these factors, we

find that the district court did not abuse its discretion in

denying Harding’s motion to withdraw his guilty plea.

Next, Harding contends that the district court abused its

discretion by not allowing his attorney to withdraw at the
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sentencing hearing. In reviewing the district court’s denial of a

motion for counsel to withdraw, this court considers: “‘Timeliness

of the motion; adequacy of the court’s inquiry into the defendant’s

complaint; and whether the attorney/client conflict was so great

that it had resulted in total lack of communication preventing an

adequate defense.’” United States v. Mullen, 32 F.3d 891, 895 (4th

Cir. 1994) (quoting United States v. Gallop, 838 F.2d 105, 108 (4th

Cir. 1988)). Whether a motion for substitution of counsel should

be granted is within a trial court’s discretion. United States v.

Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). 

We find no abuse of discretion. First, Harding did not

make his motion to withdraw until after the sentencing hearing had

begun and failed to show any circumstances justifying his late

request. Second, the court adequately inquired into the basis for

the motion and heard from Harding, his attorney, and the

Government’s attorney. Finally, there is no evidence in the record

that the conflict between Harding and his attorney resulted in a

“total lack of communication.”

Finally, Harding challenges the constitutionality of his

sentence under Blakely and its progeny. Because Harding did not

raise this issue at sentencing, his argument is reviewed for plain

error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005)

(citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).
*Just as we noted in Hughes, “[w]e of course offer no

criticism of the district judge, who followed the law and procedure

in effect at the time” of Harding’s sentencing. 401 F.3d 540, 545

n.4.

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The Supreme Court held in United States v. Booker 125 S.

Ct. 738 (2005), that Blakely applies to the federal sentencing

guidelines and that the mandatory manner in which the federal

sentencing guidelines required courts to impose sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment. The Court remedied

the constitutional violation by severing two statutory provisions,

18 U.S.C. § 3553(b)(1) (2000) (requiring courts to impose a

sentence within the applicable guideline range), and 18 U.S.C.

§ 3742(e) (2000) (setting forth appellate standards of review for

guideline issues), thereby making the guidelines advisory. Hughes,

401 F.3d at 546 (citing Booker, 125 S. Ct. at 756-57).

After Booker, courts must calculate the appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C. § 3553(a), and

impose a sentence. If a court imposes a sentence outside the

guideline range, the district court must state its reasons for

doing so. Id. This remedial scheme applies to any sentence

imposed under the mandatory guidelines, regardless of whether or

not the sentence violates the Sixth Amendment. Id. at 547 (citing

Booker, 125 S. Ct. at 769).*
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Harding’s sentencing range was greater than the term

authorized without the multiple judicial enhancements he received.

Accordingly, because the enhancements occurred under a mandatory

guidelines scheme, we vacate and remand his sentence for

resentencing consistent with Booker and Hughes. Although the

sentencing guidelines are no longer mandatory, Booker makes clear

that at resentencing the court must still “consult [the] Guidelines

and take them into account when sentencing.” 125 S. Ct. at 767.

On remand, the district court should first determine the

appropriate sentencing range under the Guidelines, making all

factual findings appropriate for that determination. See Hughes

401 F.3d at 546. The court should consider this sentencing range

along with other factors described in 18 U.S.C. § 3553(a) (2000),

and then impose a sentence. Id. If that sentence falls outside

the Guidelines range, the court should explain its reasons for the

departure as required by 18 U.S.C. § 3553(c)(2) (2000). Id. The

sentence must be “within the statutorily prescribed range . . . and

reasonable.” Id. at 547. 

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 IN PART,

 VACATED IN PART,

 AND REMANDED