United States v. Washington , 68 F. App'x 407 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4809
CALVIN WASHINGTON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-98-356)
Submitted: April 29, 2003
Decided: June 16, 2003
Before TRAXLER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Coming B. Gibbs, Jr., Charleston, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Robert H. Bickerton,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WASHINGTON
OPINION
PER CURIAM:
Calvin Washington appeals his convictions and sentence for con-
spiracy to possess with intent to distribute and to distribute cocaine
and cocaine base; conspiracy to import cocaine into the United States;
and participation in a money laundering conspiracy. Finding no
reversible error, we affirm.
I.
Washington first claims that the district court clearly erred in
imposing a two-point enhancement for obstruction of justice pursuant
to U.S. Sentencing Guidelines Manual ("USSG") § 3C1.1 (1998). The
application notes to this section specifically state that the enhance-
ment applies if the defendant engaged in conduct consisting of
"threatening, intimidating, or otherwise unlawfully influencing a co-
defendant, witness, or juror, directly or indirectly, or attempting to do
so." § 3C1.1, comment. (n.4(a)). This court reviews the district
court’s findings for clear error. United States v. Puckett, 61 F.3d
1092, 1095 (4th Cir. 1995); United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989).
The probation officer recommended an enhancement for obstruc-
tion of justice based on the grand jury testimony of Rosemary
Thomas, the sister-in-law of one of Washington’s co-defendants.
Thomas testified that Washington threatened her, told her to get out
of town, and offered to pay for her to remain out of town as long as
necessary. The district court overruled Washington’s objection to the
enhancement based on its determination that Thomas was a credible
witness. The district court’s assessment of the credibility of witnesses
is not reviewable on appeal. United States v. Saunders, 886 F.2d 56,
60 (4th Cir. 1989).
Washington’s specific contention on appeal, however, is that the
district court failed to consider the impact of a stipulation in the plea
agreement that provided that there was no evidence "warranting an
upward adjustment for obstructing or impeding the administration of
UNITED STATES v. WASHINGTON 3
justice." Because the plea agreement clearly provided that this stipula-
tion was not binding on the district court or the United States Proba-
tion Office and there is no indication in the record that the district
court was unaware of the stipulation, we find this claim to be without
merit.
II.
Washington next contends that the district court clearly erred in
denying a downward adjustment for acceptance of responsibility pur-
suant to USSG § 3E1.1. A district court’s decision to deny a reduction
in the offense level for acceptance of responsibility is reviewed for
clear error. United States v. Pauley, 289 F.3d 254, 261 (4th Cir.
2002), cert. denied, 123 S. Ct. 1007 (2003). Washington bore the bur-
den of showing by a preponderance of the evidence that he was enti-
tled to the reduction. United States v. Harris, 882 F.2d 902, 907 (4th
Cir. 1989). His guilty plea did not automatically entitle him to the
reduction. Id. at 905.
The district court denied the reduction based on its finding that
Washington provided an implausible account of his involvement in
the conspiracy. Washington fails to show that this finding is clearly
erroneous. Moreover, Washington received an adjustment for obstruc-
tion of justice; in all but extraordinary cases, a defendant who
receives such an adjustment under USSG § 3C1.1 is ineligible for a
reduction for acceptance of responsibility. See USSG § 3E1.1, com-
ment. (n.4).
III.
Washington also claims that the plea agreement obligated the Gov-
ernment to move for a downward departure based upon his substantial
assistance. He contends that the district court erred in refusing to
order the Government to move for a departure. Where a defendant
alleges his assistance to the Government entitled him to a downward
departure, this court reviews the claim for clear error. United States
v. Conner, 930 F.2d 1073, 1076-77 (4th Cir. 1991). Generally, a
departure for substantial assistance may not be made absent a motion
by the Government, United States v. Francois, 889 F.2d 1341, 1343
(4th Cir. 1989), unless the defendant makes a substantial showing that
4 UNITED STATES v. WASHINGTON
the Government has declined to make the motion due to either an
unconstitutional motive, or a reason not rationally related to a legiti-
mate government objective. Wade v. United States, 504 U.S. 181,
185-87 (1992). Additionally, the Government’s failure to file a USSG
§ 5K1.1 motion may not bar a downward departure where the defen-
dant can show, at sentencing, by a preponderance of the evidence, that
he provided the degree of assistance contemplated by the plea agree-
ment, and that the Government’s actions amount to a breach of his
plea agreement. Conner, 930 F.2d at 1076-77.
Although Washington contends that the Government breached his
plea agreement by failing to move for a departure, we find that he
fails to show that "he provided the degree of assistance contemplated
by the agreement." Id. at 1076. The record reveals that Washington
failed to disclose his full and complete knowledge concerning the
conspiracies in which he participated in violation of paragraph five of
the plea agreement, and failed to pass polygraph examinations to the
Government’s satisfaction in violation of paragraph six of the plea
agreement. Thus, we find that he failed to provide substantial assis-
tance and failed to live up to his general obligations under the plea
agreement. Accordingly, the district court did not clearly err in con-
cluding that the Government was justified in deciding to not move for
a downward departure. See United States v. David, 58 F.3d 113, 114-
15 (4th Cir. 1995) (finding that defendant who had provided substan-
tial assistance but violated "implicit term of the plea agreement" was
not entitled to a 5K1.1 motion); Conner, 930 F.2d at 1076-77 (finding
that defendant who was not truthful regarding his involvement in a
drug conspiracy has breached his plea agreement and was therefore
not entitled to a 5K1.1 motion).
IV.
Finally, Washington contends that the district court erred in failing
to grant him a hearing on his motion to withdraw his guilty plea. This
court reviews the denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Ubakanma, 215 F.3d 421, 424
(4th Cir. 2000). A defendant does not have an absolute right to with-
draw a guilty plea. United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991). Rather, a defendant bears the burden of demonstrating that
a "fair and just reason" supports his request to withdraw his plea. Id.UNITED STATES v. WASHINGTON 5
Factors considered in determining whether a defendant has shown
a fair and just reason for withdrawing his guilty plea include:
(1) whether the defendant has offered credible evidence that
the plea was not knowing or 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 the defendant
had close assistance of competent counsel; (5) whether with-
drawal will cause prejudice to the government; and (6)
whether it will inconvenience the court and waste judicial
resources.
Id. Based on our review of the record, we uphold the district court’s
finding that none of these factors favor Washington’s position.
Washington fails to offer credible evidence that his plea was not
knowing or voluntary, fails to credibly assert his legal innocence, and
fails to persuasively show that he received ineffective assistance of
counsel. Additionally, he did not file his motion to withdraw his
guilty plea until nearly three years after the entry of his plea and more
than two years after he was sentenced by the district court. Finally,
given the delay in moving to withdraw his plea, we find that with-
drawal would likely cause prejudice to the Government and inconve-
nience the court. We therefore conclude that the district court did not
err in denying Washington’s motion to withdraw his guilty plea with-
out a hearing.
Accordingly, we affirm Washington’s convictions and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED