United States of America v. Scottie Lee Martinez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4104
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SCOTTIE LEE MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, Senior
District Judge. (2:10-cr-00122-JBF-TEM-1)
Submitted: October 20, 2011 Decided: November 15, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Elizabeth M. Yusi, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Scottie Lee Martinez appeals his conviction and
sentence of 960 months’ imprisonment for production of child
pornography, in violation of 18 U.S.C. § 2251(a), (e) (2006),
and 18 U.S.C. § 2256 (1), (2) (2006), and abusive sexual
contact, in violation of 18 U.S.C. § 2244(a)(1), (c) (2006).
His sole contention on appeal is that the district court erred
in denying his motion to withdraw his guilty plea. For the
reasons that follow, we affirm.*
This Court reviews for abuse of discretion a district
court’s denial of a motion to withdraw a guilty plea. United
States v. Dyess
*
In its brief, the Government urges this Court to dismiss
Martinez’s appeal based on the appellate waiver contained in his
plea agreement. We have reviewed the record and conclude that,
while the district court carefully questioned Martinez
concerning his waiver of his right to appeal his sentence, no
mention was made that the terms of Martinez’s appellate waiver
also barred a challenge to his conviction. See United States v.
Wood, 378 F.3d 342, 349 (4th Cir 2004) (discussing a criminal
defendant’s reliance “on the district court’s characterization
of the material terms [of the plea agreement] disclosed during
the [Rule 11] hearing”); United States v. Wessells, 936 F.2d
165, 167-68 (4th Cir. 1991) (noting that if the district court
fully questions a defendant regarding the waiver during the
Federal Rule of Criminal Procedure 11 plea colloquy, the waiver
is generally both valid and enforceable). We therefore decline
the Government’s invitation to dismiss Martinez’s appeal, and
address Martinez’s claim on the merits.
, 478 F.3d 224, 237 (4th Cir. 2007). The
defendant bears the burden of showing a “fair and just reason”

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for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B);
United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007).
“[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).
“[R]eversal is warranted only if the plea proceedings were
marred by a fundamental defect that inherently resulted in a
complete miscarriage of justice, or in omissions inconsistent
with rudimentary demands of fair procedure.” United States v.
Ubakanma
(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.
, 215 F.3d 421, 425 (4th Cir. 2000). In deciding
whether to permit withdrawal, a district court should consider:
Ubakanma
Although all the factors in
, 215 F.3d at 424.
Ubakanma should be given
appropriate weight, the key factor in determining whether a
motion to withdraw should be granted is whether the Rule 11
hearing was properly conducted. United States v. Bowman, 348
F.3d 408, 414 (4th Cir. 2003). This Court closely scrutinizes
the Rule 11 colloquy and attaches a strong presumption that the

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plea is final and binding if the Rule 11 proceeding is adequate.
Lambey
We have reviewed the
, 974 F.2d at 1394.
Ubakanma factors and conclude
that Martinez has not carried his burden. Although Martinez
made a bare assertion of legal innocence, we have thoroughly
reviewed the record and find no error in the district court’s
determination that Martinez’s claim was not entitled to
credence. Moreover, Martinez has not alleged any defect in his
Rule 11 proceeding; there was a significant delay between the
entry of the plea and the motion to withdraw the plea; and
Martinez had close assistance of counsel. While we acknowledge
the district court’s finding that neither the Government nor the
courts would be overly burdened by allowing Martinez to withdraw
his guilty plea and proceed to a trial, we agree that, given the
soundness of Martinez’s guilty plea and the lack of credible
evidence supporting his assertion of legal innocence, the
Ubakanma
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
before the Court and argument would not aid the decisional
process.
factors, taken as a whole, support the district court’s
rejection of Martinez’s motion to withdraw.
AFFIRMED

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