United States v. Breedlove , 7 F. App'x 268 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 98-4861
STEPHEN MICHAEL BREEDLOVE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4207
HILDA I. C. MICHAELS,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-96-154-MU)
Submitted: October 26, 2000
Decided: April 20, 2001
Before MOTZ and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
2 UNITED STATES v. BREEDLOVE
COUNSEL
Paul Pooley, Durham, North Carolina; Randolph M. Lee, Charlotte,
North Carolina, for Appellants. Mark T. Calloway, United States
Attorney, Brian Lee Whisler, Assistant United States Attorney, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Stephen Michael Breedlove and Hilda I.C. Michaels pled guilty to
conspiracy to possess Dilaudid with intent to distribute, in violation
of 21 U.S.C.A. § 846 (West 1999). On appeal, Breedlove challenges
the district court’s denial of his motion to withdraw his guilty plea,
and Michaels contends that the district court misperceived its author-
ity to depart based on a combination of factors. We affirm
Breedlove’s conviction and dismiss Michaels’ appeal.
I.
Breedlove argues that the district court erred in denying his motion
to withdraw his guilty plea. He contends that he was not required to
articulate a fair and just reason for withdrawal because he moved to
withdraw his plea after the magistrate judge conducted his plea hear-
ing, in accordance with Fed. R. Crim. P. 11, but before the district
court accepted his plea. Because Breedlove did not rely on this argu-
ment below, we review the district court’s denial of his motion to
withdraw for plain error. United States v. Bowens, 224 F.3d 302, 314
(4th Cir. 2000) (providing standard).
At the conclusion of the Rule 11 hearing, the magistrate judge rec-
ommended accepting Breedlove’s plea but deferred acceptance of the
UNITED STATES v. BREEDLOVE 3
plea and plea agreement to the district court. In United States v. Hyde,
520 U.S. 670 (1997), the Supreme Court held that, when the defen-
dant sought to withdraw his guilty plea after the district court had
accepted the plea but before the district court had accepted the plea
agreement, the defendant could not withdraw his plea unless he had
shown a "fair and just reason" for doing so. 520 U.S. at 673-74; see
United States v. Grant, 117 F.3d 788, 790-92 (5th Cir. 1997) (holding
that defendant must show fair and just reason for withdrawal of plea
where district court conducts Rule 11 colloquy but defers acceptance
of plea and plea agreement until it reviews presentence report);
United States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992) (finding
that once guilty plea is accepted by court, regardless of whether plea
agreement is accepted, defendant is bound by his choice and may
withdraw plea only by showing either fair and just reason or by with-
drawing after rejection of plea agreement).
Given that Breedlove consented to have the magistrate judge pre-
side over his Rule 11 hearing and tendered his plea at that time, the
magistrate judge’s recommendation to accept his plea is binding. See
Hyde, 520 U.S. at 677 ("Were withdrawal automatic in every case
where the defendant decided to alter his tactics and present his theory
of the case to the jury, the guilty plea would become a mere gesture,
a temporary and meaningless formality reversible at the defendant’s
whim.") (internal quotation marks and citations omitted); United
States v. Dees, 125 F.3d 261, 266-69 (5th Cir. 1997) (collecting cases
holding that magistrate judge’s taking of guilty plea does not violate
Article III guarantees). We therefore find no plain error in requiring
Breedlove to articulate a "fair and just reason" to justify the with-
drawal of his plea. We also agree with the district court’s analysis of
the factors enunciated in United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991), and its ultimate determination that Breedlove did not
present a "fair and just reason" to warrant the withdrawal of his guilty
plea. See United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.
2000) (stating standard of review).
II.
Hilda I.C. Michaels contends that the district court erred in finding
that it did not have the authority to depart based on a "combination
of factors" theory. Our review of the record leads us to conclude that
4 UNITED STATES v. BREEDLOVE
the district court recognized its authority to depart but chose not to
exercise its discretion to do so. When the court recognizes its author-
ity to depart but chooses not to, the decision is not reviewable on
appeal. See United States v. Edwards 188 F.3d 230, 238-39 (4th Cir.
1999), cert. denied, 120 S. Ct. 968 (2000); United States v. Bayerle,
898 F.2d 28, 31 (4th Cir. 1990). We therefore dismiss Michaels’
appeal.
III.
For the reasons stated, we affirm Breedlove’s conviction and dis-
miss Michaels’ appeal.* We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED IN PART AND DISMISSED IN PART
*We have considered the effect of Apprendi v. New Jersey, 530 U.S.
466 (2000), and find that, because Breedlove’s and Michaels’ sentences
of imprisonment and terms of supervised release do not exceed the statu-
tory maximums set out in 21 U.S.C.A. § 841(b)(1)(C) (West 1999), their
sentences are permissible under Apprendi.