US v. Donald Gaschler

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

US v. Donald Gaschler

Doc. 0

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Date Filed: 09/08/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4002 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD GASCHLER, Defendant - Appellant.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Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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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

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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,

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"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

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