US v. Donald Gaschler

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00007-FPS-JES-3 Copies to all parties and the district court/agency. [998420122] [10-4002]

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US v. Donald Gaschler Doc. 0 Case: 10-4002 Document: 34 Date Filed: 09/08/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4002 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD GASCHLER, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:09-cr-00007-FPS-JES-3) Submitted: August 11, 2010 NIEMEYER, Decided: Circuit September 8, 2010 and HAMILTON, Before WILKINSON and Senior Circuit Judge. Judges, Affirmed by unpublished per curiam opinion. Patricia Valentino Kutsch, KUTSCH LAW OFFICES, Wheeling, West Virginia, for Appellant. Betsy C. Jividen, United States Attorney, Randolph J. Bernard, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-4002 Document: 34 Date Filed: 09/08/2010 Page: 2 PER CURIAM: Pursuant to the terms of his written plea agreement, Donald Gaschler pled guilty to conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. 841(b)(1)(C), 846 (2006) ("Count One"), and possession of firearms in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c)(1)(A)(i) (2006) ("Count Five"). prior to sentencing, Gaschler While free on bond the Government's facilitated arrest and prosecution of two individuals. As a result, the Government filed a motion, pursuant U.S. Sentencing Guidelines Manual 5K1.1 (2008), for a downward departure in Gaschler's sentence. When Gaschler failed to appear for sentencing, however, the Government requested that the district court permit it to withdraw the 5K1.1 motion. The Government argued that, despite Gaschler's assistance being substantial, his subsequent conduct -- failing to appear at sentencing, fleeing, and evading capture -- was inconsistent with a 5K1.1 motion. Over defense counsel's objection, the district court permitted the withdrawal of the 5K1.1 motion. 115 months' The district court sentenced Gaschler to consisting of fifty-five months on imprisonment, Count One and sixty months, consecutive, on Count Five. appeal timely followed. This 2 Case: 10-4002 Document: 34 Date Filed: 09/08/2010 Page: 3 Gaschler's sole appellate contention is that the district court erred in permitting the Government to withdraw its 5K1.1 motion. For the reasons that follow, we reject this argument and affirm the district court's judgment. We review legal questions concerning the application of the Sentencing Guidelines de novo and review factual determinations for clear error. F.3d 621, 626 (4th Cir. United States v. Manigan, 592 (internal quotation marks 2010) omitted). factual Thus, this court will defer to the district court's determinations had a underlying basis its conclusion to that the its Government rational for seeking withdraw motion for a downward departure, "[b]ut . . . will look afresh at the court's legal conclusion that those facts constitute a rational basis for the government's decision." Butler, 272 F.3d 683, 686 (4th Cir. 2001); United States v. see also United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991) (reviewing for clear error district court's finding that the government did not breach the plea agreement by failing to make a 5K1.1 motion). As the district court rightly concluded, Gaschler's contention that his post-assistance, pre-sentencing conduct did not support the Government's request to withdraw the 5K1.1 motion is contrary to our circuit precedent. v. David, 58 F.3d 113 (4th Cir. 1995). 3 See United States As we held in David, Case: 10-4002 Document: 34 Date Filed: 09/08/2010 Page: 4 "the defendant's obligation to appear for sentencing at the time appointed by the district court" is implicit in the parties' agreement pertaining to a 5K1.1 motion. Id. at 115. It is undisputed that Gaschler, like the defendant in David, failed to appear at his sentencing hearing. Accordingly, the district court did not commit any clear error in its factual findings or otherwise err in concluding that this conduct supported the withdrawal of the Government's 5K1.1 motion. F.3d at 686. For judgment. legal before these reasons, we affirm the See Butler, 272 district court's We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional contentions the court would process. AFFIRMED 4

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