United States v. Ajamu Osborne , 629 F. App'x 559 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AJAMU SAWANDI OSBORNE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:12-cr-00155-1)
Submitted: October 27, 2015 Decided: December 7, 2015
Before AGEE, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, Monica D. Coleman, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ajamu Sawandi Osborne pleaded guilty, pursuant to a written
plea agreement, to one count of possession with intent to
distribute a quantity of Oxycodone, 21 U.S.C. § 841(a)(1)
(2012), and was sentenced to 70 months’ imprisonment. He
appeals, arguing that the district court abused its discretion
in denying his motion to withdraw his guilty plea and in
refusing to grant a reduction for acceptance of responsibility
at sentencing. We affirm.
I.
After the court accepts a guilty plea, but before
sentencing, a defendant may withdraw his guilty 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, however.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The
burden of showing a fair and just reason for withdrawal of the
plea rests with the defendant. Id. A fair and just reason
“essentially challenges” the fairness of the Rule 11 proceeding.
United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).
The district court’s denial of a motion to withdraw a guilty
plea is reviewed for abuse of discretion. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
2
This court has developed a nonexclusive list of factors for
the district court to consider in 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 a guilty plea is an evaluation of the Rule 11
colloquy [and] a properly conducted Rule 11 . . . colloquy
leaves a defendant with a very limited basis upon which to have
his plea withdrawn.” United States v. Bowman, 348 F.3d 408, 414
(4th Cir. 2003). “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). Here, we find that the district court fully complied with
Rule 11 in conducting Osborne’s guilty plea colloquy.
Osborne claimed in his motion to withdraw that his plea was
not knowing or voluntary because the police mishandled the
3
evidence. After a lengthy hearing, during which the district
court heard testimony from Charleston Metro Drug Unit detectives
regarding the chain of custody procedures employed by their
department, the district court found that, applying the Moore
factors, Osborne failed to establish a fair and just reason to
allow him to withdraw his guilty plea. We find no abuse of
discretion in the district court’s decision.
II.
The determination of whether a defendant is deserving of an
acceptance of responsibility adjustment is a factual issue and
thus reviewed for clear error. United States v. Dugger, 485
F.3d 236, 239 (4th Cir. 2007). “The sentencing judge is in a
unique position to evaluate a defendant’s acceptance of
responsibility, and thus . . . the determination of the
sentencing judge is entitled to great deference on review.”
Elliott v. United States, 332 F.3d 753, 761 (4th Cir. 2003)
(internal quotations and brackets omitted). This court may
reverse the district court’s finding only when “left with the
definite and firm conviction that a mistake has been committed.”
Dugger, 485 F.3d at 239 (internal quotation marks omitted).
Section 3E1.1 of the U.S. Sentencing Guidelines Manual
provides for a two-level reduction for a defendant who “‘clearly
demonstrates acceptance of responsibility for his offense.’”
4
United States v. Jeffery, 631 F.3d 669, 678 (4th Cir. 2011)
(quoting USSG § 3E1.1(a)). To merit this reduction, the
defendant must establish by a preponderance of the evidence
“that he has clearly recognized and affirmatively accepted
personal responsibility for his criminal conduct.” United
States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996). “[A]
denial of relevant conduct is inconsistent with acceptance of
responsibility.” Elliott, 332 F.3d at 761 (internal quotation
marks omitted); see USSG § 3E1.1 cmt. n.1. We find that the
district court did not clearly err when it concluded that
Osborne’s motion to withdraw his guilty plea was inconsistent
with acceptance of responsibility.
III.
For the reasons given, we affirm Osborne’s conviction and
sentence. We deny Osborne’s motions to file a pro se
supplemental brief and for reconsideration of the order
deferring a ruling on that motion , as well as his motion “for
review and mandamus of the clerk agency final act order.” We
also deny Osborne’s motion for oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
5