United States v. Gorgone ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4722
GIUSEPPE GORGONE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CR-02-374-JFM)
Submitted: March 15, 2004
Decided: April 7, 2004
Before WIDENER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Mary-
land, for Appellant. Thomas M. DiBiagio, United States Attorney,
Michael C. Hanlon, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GORGONE
OPINION
PER CURIAM:
Giuseppe Gorgone appeals his conviction and sentence on charges
of distribution and possession of fifty grams or more of cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (2000), and possession of a fire-
arm during and relation to a drug trafficking offense, in violation of
18 U.S.C. § 924(c)(1)(A)(1) (2000).* Gorgone pled guilty pursuant to
a written plea agreement that provided the Government, in its sole
discretion, would move under U.S. Sentencing Guidelines Manual
§ 5K1.1 (2002) for a downward departure if Gorgone provided sub-
stantial assistance. After conducting a thorough Fed. R. Crim. P. 11
colloquy, including reviewing the terms of the substantial assistance
provision, the district court found Gorgone guilty. Prior to sentencing,
Gorgone moved to withdraw his plea agreement when the Govern-
ment stated it would not move for a downward departure. Addition-
ally, Gorgone filed a motion to enforce the plea agreement. The
district court denied the motions and sentenced Gorgone to the man-
datory minimum sentences of 120 months for the drug trafficking
offense and five years for the firearms offense, to be served consecu-
tively. Finding no error, we affirm.
Gorgone first appeals the district court’s denial of his motion to
withdraw his guilty plea. The district court’s denial of a motion to
withdraw a guilty plea is reviewed for abuse of discretion. See United
States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). Gorgone does
not point to any defect in the Rule 11 hearing. The district court spe-
cifically reviewed the provision of the agreement relating to the
*Gorgone’s judgment order lists a conviction for violation of 18
U.S.C. § 922(g)(1) (2000) for possessing a firearm during or in relation
to a drug trafficking offense. It appears the judgment has listed the
improper statute since § 922(g) proscribes possession of a firearm by a
convicted felon, while § 924(c) sets the mandatory minimum sentence of
five years for possession of a firearm during or in relation to a drug traf-
ficking crime. Gorgone has not asserted error in the judgment order on
appeal and the error does not affect our disposition of the issues asserted
on appeal. The district court may correct a clerical error in a criminal
judgment order at any time under Fed. R. Crim. P. 36.
UNITED STATES v. GORGONE 3
potential for a downward departure based on substantial assistance
and emphasized that it was solely within the Government’s discretion
to determine if substantial assistance was provided and neither Gor-
gone nor the court could make the Government move for a departure.
The record reflects that Gorgone entered knowingly and voluntarily
into the plea agreement. Because Gorgone failed to establish any of
the criteria under which a plea agreement may be withdrawn, we find
no abuse of discretion by the district court in its failure to allow the
withdrawal. United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991).
Gorgone next asserts that the district court erred in its denial of his
motion to enforce the plea agreement. Gorgone, who bears the burden
of establishing a breach of the plea agreement, does not allege Gov-
ernment action that constitutes a breach. United States v. Dixon, 998
F.2d 228, 230 (4th Cir. 1993); United States v. Conner, 930 F.2d
1073, 1076 (4th Cir. 1991). Moreover, we find nothing in the record
to substantiate Gorgone’s claim that the Government’s refusal to
move for a downward departure on Gorgone’s behalf was based on
any unconstitutional motive or that it was not rationally related to a
permissible government objective. See Wade v. United States, 504
U.S. 181, 185-86 (1992).
Accordingly, we affirm Gorgone’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED