United States of America v. Martinez, 277 F.3d 517, 524 4th Cir. 2002 . Ceniseros

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4148
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEBRA CENISEROS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cr-00292-JCC-3)
Submitted: October 12, 2007 Decided: October 30, 2007
Before WILKINSON and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David J. Kiyonaga, Alexandria, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Daniel Grooms, Assistant United
States Attorney, Paul Ahern, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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*The Government contends that no motion to withdraw was ever
made and that any challenge to the Fed. R. Crim. P. 11 colloquy
must therefore be reviewed for plain error. See United States
v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002). Ceniseros and her
counsel made equivocal, even contradictory, statements throughout
the hearings regarding whether Ceniseros wished to withdraw her
plea. In an abundance of caution, we presume that Ceniseros
sufficiently raised the issue in the district court of whether she
should be permitted to withdraw from her guilty plea.
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PER CURIAM:
Debra Ceniseros appeals from her conviction and 120-month
sentence for conspiracy to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. § 846 (2000). Ceniseros
claims that the district court abused its discretion in denying her
motion to withdraw her guilty plea, as she was not aware at the
time she entered her plea that she would be held responsible for
the conduct of her co-conspirators. Because our review of the
record discloses no reversible error, we affirm.
After a plea has been entered, a defendant may withdraw
the plea only if she can show a “fair and just reason” for
withdrawal. Fed. R. Crim. P. 11(d)(2)(B). This court reviews the
district court’s refusal to allow a defendant to withdraw a guilty
plea for abuse of discretion. * United States v. Bowman, 348 F.3d
408, 413-14 (4th Cir. 2003). When considering whether to permit a
defendant to withdraw a guilty plea, a district court must
evaluate: (1) whether the defendant has offered credible evidence
that her plea was not knowing and voluntary; (2) whether the
defendant has credibly asserted her legal innocence; (3) whether

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there has been a delay between the entry 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 withdrawal will inconvenience the
court and waste judicial resources. United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991). Although all of these factors are
to be given appropriate weight, the most important consideration is
whether the Rule 11 colloquy was properly conducted and the plea
was both counseled and voluntary. See Bowman, 348 F.3d at 413-14.
During the Rule 11 hearing, the district court explained
to Ceniseros that she could be held responsible for the conduct of
her co-conspirators and that their conduct could affect her
sentencing guidelines range. When Ceniseros indicated that she did
not understand why she should be held responsible for the actions
of others, the court explained the nature of the conspiracy charge
and that the cumulative amount of drugs distributed by the
conspirators could be attributed to her. Ceniseros stated that she
understood, but that she had not been previously informed of this
consequence. At that point, the court told Ceniseros she could
withdraw her plea and that she should confer with counsel before
proceeding. After a brief conversation with counsel, Ceniseros
stated that she did not want to withdraw her plea and that she
understood she could be held responsible for the conduct of others
in the conspiracy.

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At subsequent hearings, Ceniseros asserted that she did
not understand what she had agreed to at the Rule 11 hearing,
stating that she was responsible for only 1.8 grams of cocaine base
and that she did not realize she would be sentenced for
distributing from 50 to 150 grams of cocaine base. However, these
contentions are belied by Ceniseros’ responses at the Rule 11
hearing. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (sworn
statement at Rule 11 hearing carries strong presumption of truth).
The district court read the conspiracy charge to Ceniseros at the
beginning of the hearing, noting that the conspiracy involved
distribution of 50 grams or more of cocaine base. Ceniseros stated
that she understood the charge and was aware that she faced a
mandatory minimum sentence of ten years’ incarceration, the
sentence she ultimately received. Ceniseros also told the court
that she had read and understood the plea agreement and the
statement of facts, which specifically stated that she “personally
distributed or it was reasonably foreseeable to her that, in
furtherance of the conspiracy, [her] co-defendants distributed 50
to 150 grams of cocaine base.”
While Ceniseros expressed confusion during the hearing
regarding the nature of the conspiracy charge, the district court
properly explained the matter to her, allowed her to confer with
counsel, and gave her the option of withdrawing her plea. See
United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992).

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Additionally, the district court informed Ceniseros of the rights
she was forfeiting as a result of her plea, determined the
voluntariness of her guilty plea, and concluded that there was a
factual basis for the plea. Therefore, the record establishes that
Ceniseros knowingly and voluntarily entered into her guilty plea
with a full understanding of the consequences, and that there was
no error in the district court’s acceptance of her plea.
As for the remainder of the Moore factors, Ceniseros did
not contend that she was innocent; rather, she asserted that she
was responsible for a lesser amount of cocaine base. Additionally,
there was more than a three month delay between the Rule 11 hearing
and Ceniseros’ first definitive statement regarding her desire to
withdraw from her plea. Finally, Ceniseros was provided with two
competent attorneys throughout her case. Because none of these
factors weigh in Ceniseros’ favor, we find that the district court
did not abuse its discretion in denying her request to withdraw the
guilty plea.
Accordingly, we affirm the judgment of the district
court. 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

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