United States v. Octavian Godette

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OCTAVIAN DARNELL GODETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:13-cr-00014-BO-1)
Submitted: November 25, 2014 Decided: January 14, 2015
Before NIEMEYER, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER ASHTON, P.A., New Bern, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Octavian Darnell Godette pled guilty, pursuant to a
plea agreement, to possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) (2012). On appeal,
Godette raises several challenges to his conviction and 262-
month, within-Guidelines sentence. Finding no error, we affirm.
I.
Godette first argues that the district court erred by
denying his motion to withdraw his guilty plea and by failing to
adequately inquire into the grounds alleged in the motion. We
review a district court’s denial of a motion to withdraw a
guilty plea for abuse of discretion. United States v.
Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). A defendant
seeking to withdraw his guilty plea bears “the burden of showing
a fair and just reason for withdrawal” of the plea. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
We have developed a nonexclusive list of six factors
for the district court to consider when determining whether the
defendant has met his burden. United States v. Moore, 931 F.2d
245, 248 (4th Cir. 1991). While all of the Moore factors should
be considered, “[t]he most important consideration in resolving
a motion to withdraw a guilty plea is an evaluation of the [Fed.
R. Crim. P.] 11 colloquy.” United States v. Bowman, 348 F.3d
408, 414 (4th Cir. 2003). “[A] properly conducted Rule 11
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guilty plea colloquy leaves a defendant with a very limited
basis upon which to have his plea withdrawn,” id., and “raise[s]
a strong presumption that the plea is final and binding.”
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en
banc).
Having thoroughly reviewed the record, we conclude
that the district court did not abuse its discretion by denying
Godette’s motion to withdraw his guilty plea. Moreover, because
Godette did not present “a fair and just reason for withdrawal
of the plea,” Moore, 931 F.2d at 248 (internal quotation marks
omitted), the district court did not err by failing to further
explore Godette’s conclusory allegations at the hearing.
II.
Next, Godette contends that the district court erred
by applying the attempted murder cross-reference under U.S.
Sentencing Guidelines Manual (“USSG”) § 2A2.1(a)(1) (2012)
instead of the attempted robbery cross-reference under USSG
§ 2B3.1, as his intent was to rob, not murder the victim. When
evaluating Guidelines calculations, including the application of
a cross-reference, we review the district court’s legal
conclusions de novo and its factual findings for clear error.
United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014).
Section 2A2.1 provides for a base offense level of
thirty-three “if the object of the offense would have
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constituted first degree murder,” as defined in 18 U.S.C. § 1111(2012). USSG § 2A2.1(a)(1) & cmt. n.1. Section 1111, in turn,
defines first degree murder as “the unlawful killing of a human
being with malice aforethought” — that is, “[e]very murder
perpetrated by . . . willful, deliberate, malicious, and
premeditated killing; or committed in the perpetration of, or
attempt to perpetrate, any . . . robbery.” 18 U.S.C. § 1111(a).
Thus, according to the statutory definition, a court may find
that the defendant committed first degree murder if the killing
was premeditated or committed during the course of a felony,
such as robbery. We conclude that firing shots at the victim in
his home at a level that could have killed him had Godette not
missed constitutes attempted first degree murder under any
definition.
III.
Next, Godette challenges the reasonableness of his
262-month sentence. He first contends that the district court
did not provide a sufficient explanation for its chosen
sentence. We review a sentence for procedural and substantive
reasonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). In determining
procedural reasonableness, we consider, among other factors,
whether the district court sufficiently explained the selected
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sentence and adequately considered the 18 U.S.C. § 3553(a)
(2012) factors. Id.In explaining its sentence, the district court is not
required to “robotically tick through § 3553(a)’s every
subsection, particularly when imposing a within-Guidelines
sentence.” United States v. Powell, 650 F.3d 388, 395 (4th Cir.
2011) (internal quotation marks omitted). However, “[w]here the
defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence than that set forth in the
advisory Guidelines, a district judge should address the party’s
arguments and explain why he has rejected those arguments.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(internal quotation marks omitted).
It may be possible, however, for an appellate court to
evaluate from “[t]he context surrounding a district court’s
explanation . . . both whether the court considered the
§ 3553(a) factors and whether it did so properly.” United
States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006).
Where the record clearly reveals that the court considered the
parties’ arguments and relevant evidence and the case is
“conceptually simple,” the law does not require a judge “to
write more extensively.” Rita v. United States, 551 U.S. 338,
359 (2007).
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Although Godette correctly notes that the district
court did not explicitly state its reasons for the 262-month
sentence, the record clearly reveals the court’s reasons for
imposing a sentence at the top of the advisory Guidelines range:
the sentence would protect the public and might deter Godette
from engaging in further criminal conduct.
Godette also argues that his sentence is substantively
unreasonable because the district court should have granted his
motion for a downward variance. We consider the substantive
reasonableness of the sentence by “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. “Any
sentence that is within or below a properly calculated
Guidelines range is presumptively [substantively] reasonable.
Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295,
306 (4th Cir.) (citations omitted), cert. denied, 135 S. Ct. 421(2014).
We conclude that Godette has not met his burden of
demonstrating that his within-Guidelines sentence is
substantively unreasonable. In light of the significant danger
Godette poses to society and his demonstrated lack of respect
for the law, a sentence at the top of the advisory Guidelines
range was more than justified.
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IV.
Finally, we conclude that Godette waived his challenge
to the armed career criminal enhancement when counsel conceded
in the district court that the argument was without merit. See
United States v. Olano, 507 U.S. 725, 733 (1993) (“Waiver is the
intentional relinquishment or abandonment of a known right.”
(internal quotation marks omitted)); United States v. West, 550
F.3d 952, 958 (10th Cir. 2008) (finding that defendant waived
challenge to prior conviction as predicate offense for Armed
Career Criminal Act purposes by affirmatively conceding issue in
district court), partially overruled on other grounds as
recognized by United States v. Smith, 652 F.3d 1244, 1246 (10th
Cir. 2011). Accordingly, we decline to consider Godette’s
challenge to his armed career criminal designation. See United
States v. Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When
a claim of . . . error has been waived, it is not reviewable on
appeal.”).
V.
We affirm the district court’s judgment. We dispense
with 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
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