for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit United States… v. N o . 00-4489 ANGELO VICTOR NEWBILL, JR., a/k/a Angelo Victor Newbill

Filed: March 12, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-4489
(CR-98-298-MU)
United States of America,
Plaintiff - Appellee,
versus
Angelo Victor Newbill, Jr., etc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed February 13, 2002, as
follows:
On the cover sheet, section 7, line 1 -- counsel’s name is
corrected to read “James G. Middlebrooks.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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UNPUBLISHED UNPUBLISHED UNPUBLISHED UNPUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. N o .
00-4489
ANGELO VICTOR NEWBILL, JR., a/k/a
Angelo Victor Newbill,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-98-298-MU)
Submitted: January 31, 2002
Decided: February 13, 2002
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
____________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished
per
curiam opinion.
____________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
James G. Middlebrooks, SMITH, HELMS, MULLISS & MOORE,
L.L.P., Charlotte, North Carolina, for Appellant. Robert J.
Conrad, Jr.,
United States Attorney, Gretchen C.F. Shappert, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
____________________________________________________________

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Unpublished opinions are not binding precedent in this circuit.
See
Local Rule 36(c).
____________________________________________________________
OPINION OPINION OPINION OPINION
PER CURIAM:
Angelo Victor Newbill, Jr., was convicted pursuant to his
guilty
plea of one count of conspiracy to possess with the intent to
distribute
cocaine base, cocaine, and marijuana in violation of 21 U.S.C.A.
§ 846 (West Supp. 2001), and sentenced to 360 months
incarceration.
On appeal, he alleges the district court abused its discretion by
deny-
ing his motion to withdraw his guilty plea. While opposing
Newbill's
arguments with respect to his guilty plea, the Government
simulta-
neously raises and concedes that Newbill's sentence is invalid
under
Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm in part,
vacate in part, and remand for resentencing.
Newbill possesses no absolute right to withdraw his plea of
guilty.
United States v. Ewing, 957 F.2d 115, 118 (4th Cir. 1992). We
review
the denial of a motion to withdraw a guilty plea for abuse of
discre-
tion.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
The defendant has the burden of demonstrating "a fair and just
rea-
son" for withdrawal. Fed. R. Crim. P. 32(e);
Ubakanma, 215 F.3d at
424. A "fair and just reason" is one that challenges the Fed. R.
Crim.
P. 11 colloquy.
United States v. Puckett, 61 F.3d 1092, 1099 (4th
Cir.
1995).
To determine whether a defendant has shown a fair and just
reason
for withdrawal, a trial court should consider the six factors
set out in
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
Uba-
kanma, 215 F.3d at 424. The
Moore factors are: (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 entry of
the
plea and filing of the motion; (4) whether the defendant has had
close
assistance from competent counsel; (5) whether withdrawal will
prej-
udice the government; and (6) whether it will inconvenience the
court
and waste judicial resources.
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Although all the factors in
Moore must be given appropriate
weight, the key to determining whether a motion to withdraw a
guilty
plea should be granted is whether the Rule 11 hearing was
properly
conducted.
Puckett, 61 F.3d at 1099. This court closely
scrutinizes the
Rule 11 colloquy. An adequate Rule 11 proceeding creates a
strong
presumption that the guilty plea is binding. Having reviewed the
record of the hearing conducted in the district court on
Newbill's
motion to withdraw his guilty plea, we find no abuse of
discretion in
the district court's denial of Newbill's motion. We accordingly
affirm
his conviction.
As for Newbill's 360-month sentence, the Government concedes
Newbill's sentence is invalid under
Apprendi because it exceeds
the
240-month statutory maximum of 21 U.S.C.A. § 841(b)(1)(C) (West
1999 & Supp. 2001), and because the indictment failed to allege
a
threshold drug quantity. We agree. The imposition of a sentence
beyond the statutory maximum of § 841(b)(1)(C) is plain error
where
the threshold drug quantity was not alleged in the indictment
or sub-
mitted to the jury. This error affects a defendant's substantial
rights
and is jurisdictional in nature.
See United States v. Dinnall, 269
F.3d
418 (4th Cir. 2001). "Where the plain error at issue is
jurisdictional,
as here, the quantum of evidence allegedly supporting
indictment or
conviction of an aggravated drug offense based on a threshold
drug
quantity is irrelevant to the exercise of our discretion to notice
such
error."
Id. at 424.
See United States v. Cotton, 261 F.3d 397 (4th
Cir.
2001),
cert. granted, 2002 WL 10623, 70 U.S.L.W. 3348 (U.S. Jan.
4, 2002) (No. 01-687). Thus, we vacate Newbill's sentence and
remand for resentencing in accordance with 21 U.S.C.A.
§ 841(b)(1)(C).
We dispense with oral argument because the facts and legal
conten-
tions 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
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