United States of America v. Phillip Jamal Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4756
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PHILLIP JAMAL JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00012-CCE-1)
Submitted: May 28, 2015 Decided: October 2, 2015
Before MOTZ, GREGORY, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, LAW OFFICE OF GEORGE E. CLUMP, III,
Rockingham, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Clifton T. Barrett, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Phillip Jamal Jones pled guilty to: carrying and using, by
brandishing, a firearm during and in relation to a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii) (2012) (Count Two); and
bank robbery, 18 U.S.C. § 2113(a) (2012) (Count Three). He was
sentenced to 108 months in prison on each count; the sentences
run consecutively. Jones appeals, claiming that the district
court erred when it denied his motion to withdraw his guilty
plea to Count Two and that his sentence is unreasonable. We
affirm.
I
Jones’ motion to withdraw his guilty plea to Count Two was
based on his claims that he was not guilty of the offense and
was depressed and not thinking clearly at the time he entered
his plea. We conclude that the district court did not abuse its
discretion in denying the motion. See United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (stating standard of
review).
After a district court accepts a guilty plea, but before
sentencing, a defendant may withdraw his plea if he “can show a
fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B). The Rule does not afford a defendant an
absolute right to withdraw a guilty plea. United States v.
Bowman, 348 F.3d 408, 413 (4th Cir. 2003); United States v.

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Moore, 931 F.2d 245, 248 (4th Cir. 1991). The burden of
establishing “a fair and just reason” for plea withdrawal lies
with the defendant. Ubakanma, 215 F.3d at 424. A fair and just
reason “essentially challenges the fairness” of the Fed. R.
Crim. P. 11 proceeding. Id. (internal quotation marks omitted).
We have developed a nonexclusive list of factors for the
district court to consider when deciding if the defendant has
met his 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.
Moore, 931 F.2d at 248. “The most important consideration in
resolving a motion to withdraw . . . is an evaluation of the
Rule 11 colloquy. . . . Accordingly, a properly conducted Rule
11 . . . colloquy leaves a defendant with a very limited basis
upon which to have his plea withdrawn.” Bowman, 348 F.3d at
414. “If an appropriately conducted Rule 11 proceeding is to
serve a meaningful function, on which the criminal justice
system can rely, it must be recognized to raise a strong
presumption that the plea is final and binding.” United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).

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With these standards in mind, and having reviewed the
transcript of the properly conducted Rule 11 hearing, we
conclude that the district court did not abuse its discretion in
applying the above factors and finding that Jones failed to show
a fair and just reason to withdraw his plea. Further, because
Jones did not make this showing, no evidentiary hearing on the
motion was required. See Moore, 931 F.2d at 248.
II
We now address Jones’ argument that his sentence is
unreasonable. At sentencing, the district court first stated
that it would depart from the seven-year Guidelines sentence on
Count Two pursuant to U.S. Sentencing Guidelines Manual § 5K2.2
(2013) based on significant physical injury to a victim. The
court said that it would also depart from the Guidelines range
of 63-78 months on Count Three because Jones’ criminal history
score did not adequately reflect the seriousness of his criminal
history and the risk of recidivism.
The court added that, even without the departures, an
upward variance on both counts was appropriate. The court found
that several 18 U.S.C. § 3553(a) (2012) factors warranted a
variance. Among other things, the court noted the violent
assault on the victim of the firearm offense, Jones’ extensive
criminal record, the need to protect the public, and Jones’
inability to conform his behavior to society’s expectations.

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We review “any sentence, within or outside of the
Guidelines range, a result of a departure or of a variance,
. . . for reasonableness pursuant to an abuse of discretion
standard.” United States v. Diosdado-Star, 630 F.3d 359, 365
(4th Cir. 2011). “When . . . a district court offers two or
more independent rationales for its deviation, an appellate
court cannot hold the sentence unreasonable if the appellate
court finds fault with just one of these rationales.” United
State v. Evans, 526 F.3d 155, 165 (4th Cir. 2008).
Consequently, “the method of deviation from the Guidelines range
— whether by a departure or by varying — is irrelevant so long
as at least one rationale is justified and reasonable.”
Diosdado-Star, 630 F.3d at 365-66.
Under these principles, if we are satisfied that the
district court's stated rationale for applying a variance
sentence is reasonable and justified, we need not address Jones’
claim that the district court erroneously departed from the
Guidelines range. We find that the district court committed no
procedural or substantive error in its decision to vary upward.
We note especially that the court sufficiently explained its
reasons for both its decision to vary and the extent of the
variance.

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III
We accordingly affirm. We dispense with oral argument
because the facts and legal arguments are adequately presented
in the materials before the court and argument would not aid the
decisional process. The motion for leave to file a pro se
supplemental brief is denied.
AFFIRMED

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