US v. Donnell Callaham, No. 09-4689 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4689 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONNELL EDWARD CALLAHAM, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:08-cr-00052-jpj-pms-1) Submitted: October 7, 2010 Decided: November 2, 2010 Before GREGORY, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. A. Benton Chafin, Jr., CHAFIN LAW FIRM, P.C., Lebanon, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, A. Benjamin Spencer, Special Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Donnell Edward Callaham pled guilty, pursuant to a plea agreement, to knowingly possessing firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g) (2006), possession of stolen firearms, in violation of 18 U.S.C. § 922(j), possessing a firearm with the manufacturer s serial number removed, obliterated, and altered, in violation of 18 U.S.C. § 922(k), and conspiracy to possess stolen firearms and to possess a firearm with the manufacturer s serial number removed, obliterated, and altered, in violation of 18 U.S.C. § 371 (2006). was denied Callaham to Callaham s subsequent motion to withdraw his plea after 324 a hearing. months The district imprisonment. sentenced appeal, On court Callaham contests the magistrate judge s denial of his motion to withdraw his guilty plea and the district court s imposition of a twolevel enhancement under U.S. Sentencing Guidelines Manual (USSG) § 3C1.2 (2007). We For the following reasons, we affirm. review a lower court s denial of withdraw a guilty plea for abuse of discretion. v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003). a motion to United States Federal Rule of Criminal Procedure 11 authorizes the withdrawal of a guilty plea before sentencing if the defendant can show a fair and just reason for 11(d)(2)(B). requesting We have the withdrawal. explained 2 that Fed. a R. defendant Crim. P. has no absolute right to withdraw a guilty plea, and that the district court has discretion to decide whether a fair and just reason exists. (4th Cir. important United States v. Ubakanma, 215 F.3d 421, 424 2000). We consideration have in also explained resolving a that motion to the most withdraw a guilty plea is an evaluation of the Rule 11 colloquy at which the guilty plea was accepted. Bowman, 348 F.3d at 414. Accordingly, a lower court s inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. United States v. Willis, 992 F.2d (internal quotation marks omitted). 489, 490 (4th Cir. 1993) A properly conducted Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to have his plea withdrawn. at 414. Bowman, 348 F.3d In reviewing the denial of a motion to withdraw a guilty plea, we consider six factors: (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 judicial resources. (4th Cir. 1991). will inconvenience the court and waste United States v. Moore, 931 F.2d 245, 248 Our review of the record leads us to conclude 3 that the magistrate judge properly applied these factors and did not abuse her discretion in denying Callaham s motion to withdraw his guilty plea. Next, Callaham contends that the district court erred in applying reckless a two-level endangerment. enhancement We review under USSG the § 3C1.2 district for court s application of the reckless endangerment enhancement for clear error. United States v. Carter, 601 F.3d 252, 254 (4th Cir. 2010). The Government has the burden of proving an enhancement by the preponderance of the evidence. 322 F.3d 301, 307 (4th Cir. 2003). United States v. Hill, The Guidelines provide for a two-level enhancement [i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. USSG § 3C1.2. Applying the relevant legal principles to the evidence and testimony adduced at the sentencing hearing leaves us without doubt that the district court did not clearly err in imposing the enhancement in this case. Accordingly, sentence. legal before affirm Callaham s convictions and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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