United States of America v. Francis Curtis Davis, a/k/a Abdul-Malik Lbnfrancis As-Salafi

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4542
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCIS CURTIS DAVIS, a/k/a Abdul-Malik Lbnfrancis
As-Salafi,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:11-cr-00080-JAG-1)
Argued: May 17, 2013 Decided: June 20, 2013
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.
ARGUED: Keith Nelson Hurley, KEITH N. HURLEY, P.C., Richmond,
Virginia, for Appellant. Angela Mastandrea-Miller, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:
Eight weeks after pleading guilty in district court,
Defendant–Appellant Francis C. Davis moved to withdraw his plea.
The district court denied Davis’s motion and sentenced him to
the plea-recommended twenty-year prison term.
On appeal, Davis argues that the district court judge erred
in not recusing himself from hearing Davis’s motion to withdraw
his plea. Davis also argues that the district court
impermissibly participated in the plea negotiations and
therefore abused its discretion in denying Davis’s motion. For
the reasons discussed below, we affirm the rulings of the
district court.
I.
In March 2011, Davis was indicted for robbery affecting
commerce, using a firearm in a crime of violence, and possession
of a firearm by a convicted felon.1 Davis pled not guilty to all
of the charges, and the case was set for trial. Before trial,
Davis’s counsel filed a motion to suppress statements Davis made
to law enforcement, and, relevant to this appeal, Davis filed a
pro se motion to appoint new counsel.
1 Davis has legally changed his name. But because his name
was Davis at the time of most events underlying this appeal, we
refer to him here as Davis.

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At a hearing in December 2011, the district court granted
the motion to suppress and discussed the pro se motion with
Davis. After that discussion, Davis indicated that he would
proceed with current counsel. The court then advised Davis that
he could face a mandatory minimum term of fifty years’
imprisonment. At the end of the hearing, the court told Davis
“you have got a difficult situation if you get convicted” and
that everyone in the courtroom “would hate to see your life
ruined in that way.” J.A. 48.
In January 2012, Davis’s counsel and the government reached
a plea agreement whereby the government agreed to recommend a
twenty-year prison sentence.2 Davis initially accepted but on
the morning of the plea hearing, Davis proposed a modification
that the government rejected. At the hearing, the court
discussed with Davis the options of pleading versus going to
trial:
If you are found guilty of both of these
offenses, you are going to go to jail, at a
minimum, for 50 years. And that is – they
are offering you a way to get out of that
through whatever sort of a plea bargain they
offered you. It looks like they have a lot
of witnesses. But, you know, you and [your
2 The government stated at oral argument that it had
offered the plea agreement based on its belief that a key
witness would be unavailable for trial. The government later
learned that the witness would be available but chose to honor
its offer.

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attorney] need to make that choice. But – I
probably have a reputation as a light
sentencer – but I will tell you, there is
nothing I can do about those, about that 50-
year sentence. I cannot give you anything
less than that if you are convicted of both
those offenses.
J.A. 57-58.
The court also said to Davis:
[N]ow is the time for you to make a decision
whether you want to take the 20 year
sentence or face the possibility of 50 years
on the gun charges alone, plus more time, if
any, on the robbery charge. . . . I urge you
to think carefully before you turn down that
offer. . . . [Y]ou and [your attorney] know
more about this case than I do. And maybe
they really don’t have good witnesses. But I
sort of doubt that. So, you know, you have
got some exposure here. What you do about
that exposure is entirely up to you.
J.A. 59. The court suggested that with a 50-year sentence,
Davis, who was 35 years old at the time, “would die in jail
probably.” J.A. 61. Then the court adjourned for approximately
an hour to allow Davis to consult with his counsel. Upon
return, Davis indicated that he would plead guilty. And, after
determining Davis was pleading knowingly and voluntarily, the
court accepted Davis’s plea and scheduled sentencing.
Almost two months later, Davis filed a pro se motion to
withdraw his guilty plea, alleging ineffective assistance of
counsel and stating that the court’s advice that he “think
about” his decision persuaded him to accept the plea. J.A. 104.

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Davis also filed a pro se motion to have new counsel appointed.
The district court granted Davis’s motion for new counsel and
scheduled a hearing on Davis’s motion to withdraw his plea.
After the hearing, the district court denied Davis’s motion to
withdraw his plea. Thereafter, Davis, pro se, moved to dismiss
the indictment and hold an evidentiary hearing on the
voluntariness of his plea. The district court denied both
motions and sentenced Davis to the plea-recommended term of
twenty years’ imprisonment.
On appeal, Davis argues that the district court judge was
required to recuse himself from hearing Davis’s motion to
withdraw his plea and abused his discretion in denying that
motion. We address each argument in turn.
II.
Davis first argues that the district court judge was
required to recuse himself from reviewing Davis’s motion to
withdraw his guilty plea. Both parties agree that Davis raises
this issue for the first time on appeal. We therefore review it
only for plain error, Fed. R. Crim. P. 52(b), meaning Davis must
show that: (1) an error occurred; (2) it was plain; and (3) it
affected his substantial rights. United States v. Penniegraft,
641 F.3d 566, 575 (4th Cir. 2011). This Court exercises its
discretion to correct such an error only when “failure to do so

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would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
Davis contends that recusal was mandatory under 28 U.S.C. §
455(b)(1), which provides that a judge shall disqualify himself
“[w]here he has personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning
the proceeding.” Further, Davis argues that Section 455(a) also
required recusal because one might reasonably question the
partiality of a judge reviewing himself. See id. § 455(a) (“Any
justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”).
The bar for recusal is quite high—“courts have only granted
recusal motions in cases involving particularly egregious
conduct.” Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir.
2011). Moreover, “both § 455(a) and § 455(b)(1) carry an
extrajudicial source limitation” meaning that generally a
judge’s bias or prejudice must “result in an opinion on the
merits [of a case] on some basis other than what the judge
learned from his participation in the case.” Id. at 572–73
(internal quotation marks and citations omitted).

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Here, Davis fails to identify any “personal knowledge” of
the district court judge that came from an extrajudicial source:
The judge’s knowledge of the case stems solely from his having
presided over it. And it was the district court’s judicial duty
to ensure that Davis’s plea was knowing and voluntary. Further,
Davis fails to show, and our review of the record reveals no
indication of, bias against Davis or favoritism toward the
government. The district court judge carefully considered
Davis’s motion to withdraw under the appropriate legal framework
after having granted Davis new counsel to represent him in that
motion hearing.
In sum, Davis has failed to show that the district court
plainly erred by violating Section 455.
III.
Davis also argues that the district court erred in denying
his motion to withdraw his plea. We review this issue for abuse
of discretion. See, e.g., United States v. Ubakanma, 215 F.3d
423, 424 (4th Cir. 2000) (“We review the denial of a motion to
withdraw a guilty plea for abuse of discretion.”).
A defendant has no absolute right to withdraw a guilty
plea. Rather, he must show that a “fair and just reason”
supports withdrawal. United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991) (citing Fed. R. Crim. P. 32(d)). In Moore, this

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Court delineated six factors district courts should consider to
determine whether a defendant has met this burden:
(1) whether the defendant has offered
credible evidence that his plea was not
knowing or not 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.
Id.
Here, the district court applied the Moore factors,
concluded that the three most important factors—voluntariness,
innocence, and close assistance of counsel—cut against Davis,
and thus denied Davis’s motion. See United States v. Sparks, 67
F.3d 1145, 1154 (4th Cir. 1995) (“The factors that speak most
straightforwardly to the question whether the movant has a fair
and just reason to upset settled systemic expectations by
withdrawing her plea are the first, second, and fourth.”).
The bulk of Davis’s appeal is devoted to the first Moore
factor, voluntariness. Specifically, Davis contends that the
district court’s dialogue with him at both the December 2011 and
January 2012 hearings amounted to improper judicial
participation in plea negotiations in violation of Federal Rule
of Criminal Procedure 11(c) and coerced him into accepting the

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plea. Upon close review of the record, we conclude that
although the district court judge may have been overly cautious
in his efforts to ensure Davis made a fully informed decision,
those efforts did not amount to coercion.
Federal Rule of Criminal Procedure 11(c) commands that
courts “must not participate” in plea discussions. This
“prohibition on judicial involvement in plea negotiations guards
against the high and unacceptable risk of coercing a defendant
to enter into an involuntary guilty plea.” United States v.
Bradley, 455 F.3d 453, 460 (4th Cir. 2006) (internal quotation
marks omitted). A court, however, must ensure that a plea is
knowing and voluntary before it accepts the plea. E.g., United
States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003). And Rule
11, which sets out the information a court must convey to a
defendant to ensure that he understands his plea, specifically
requires a court to “inform the defendant of, and determine that
the defendant understands . . . any mandatory minimum penalty .
. . .” Fed. R. Crim. P. 11(b)(1)(I).
Here, the district court engaged Davis to ensure that he
understood the consequences of pleading versus going to trial in
the context of the potential penalties Davis faced.3 The court
3 The Supreme Court recently underscored that the plea-
colloquy requirements “come into play after a defendant has
agreed to plead guilty” and the bar on judicial participation
(Continued)

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made clear that the choice was Davis’s. And after Davis
accepted the plea agreement, the district court engaged in a
thorough Rule 11 colloquy, inquiring about whether anyone had
threatened Davis to get him to plead guilty, whether he was
pleading of his own free will, and whether he believed pleading
was in his best interest. See Bowman, 348 F.3d at 417 (“The
most important consideration in resolving a motion to withdraw a
guilty plea is an evaluation of the Rule 11 colloquy at which
the guilty plea was accepted.”); United States v. Puckett, 61
F.3d 1092, 1099 (4th Cir. 1995) (“[A]n appropriately conducted
Rule 11 proceeding . . . raise[s] a strong presumption that the
plea is final and binding.”) (internal quotation marks omitted).
Accordingly, the district court did not err in ruling that Davis
failed to show that his plea was not knowing or voluntary.
The district court’s analysis of the five other Moore
factors requires less comment. Regarding the second factor—
innocence—the district court concluded that, based on the
Statement of Facts, Davis failed to make a credible assertion of
innocence. The district court noted that Davis “ha[d] not made
“becomes operative before a defendant has decided whether to
plead guilty.” United States v. Davila, No. 12-167, slip op. at
10 (U.S. June 13, 2013). In Davila, the government acknowledged
that a Rule 11(c) violation had occurred. Here, we decline to
find that the district court’s comments constituted
participation in the plea negotiations. See id. at 11.

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much of a showing that he was innocent,” J.A. 187, and Davis
declared under oath that he understood the charges and was
pleading guilty because he was, in fact, guilty. See Beck v.
Angelone, 261 F.3d 377, 396 (4th Cir. 2001) (holding that,
absent “clear and convincing evidence to the contrary,”
defendant is “bound by his representations” made during the plea
colloquy). Thus, the second Moore factor does not weigh in
Davis’s favor.
On the third factor, timing, Davis filed his motion almost
two months after pleading guilty. A district court could count
a delay of this length against a defendant. See Moore, 931 F.2d
at 248 (“Moore long delayed between the time of the pleas and
the time of entering the motion . . . . He waited six weeks
before giving notice of his intent to move to withdraw his
pleas.”). Nonetheless, the district court here did not, noting
the limitations imposed on Davis by his imprisonment.
Regardless, the timing factor does not itself constitute a fair
and just reason for withdrawal.
Davis’s argument regarding the fourth Moore factor, close
assistance of counsel, is similarly unpersuasive. A defendant
can establish this factor only by showing that “counsel’s
performance fell below an objective standard of reasonableness.”
Sparks, 67 F.3d at 1153 (internal quotation marks omitted). We
agree with the district court that there is no record evidence

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that Davis’s attorney performed below an objective standard of
reasonableness. Although—as the district court noted—Davis
complained about his attorney, he declared under oath that he
was satisfied with his counsel, who had, in fact, won a pre-
trial motion to suppress prosecutorial evidence early in the
case. Thus, this factor also weighs against Davis.
Finally, regarding the last two Moore factors, the district
court acknowledged that the government intended to call nearly
one dozen witnesses—many of whom reside out of state.
Nonetheless, the court concluded that prejudice to the
government and inconvenience to the judiciary were not
“dispositive” in denying Davis’s motion. J.A. 189. Further,
when a district court determines that “the first four factors .
. . militate against granting the defendant’s motion, it can
reasonably refrain from trying to ascertain just how much
withdrawal of the plea would prejudice the government and
inconvenience the court.” Sparks, 67 F.3d at 1154. Clearly,
then, Davis fails to mount an abuse of discretion argument based
on these factors.

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IV.
Concluding that the district court judge neither erred in
not recusing himself nor abused his discretion in denying
Davis’s motion to withdraw his plea, we affirm.
AFFIRMED

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