US v. Ajamu Osborne


UNPUBLISHED PER CURIAM OPINION filed. Motion dispositions in opinion--denying Motion to file supplemental brief(s) [999638345-2], denying Motion to file supplemental brief(s) [999665597-2]; denying Motion to reconsider [999646129-2]; denying Motion for "review and mandamus of the clerk agency final act order" [999676166-2], denying Motion for oral argument [999696822-2]. Originating case number: 2:12-cr-00155-1. Copies to all parties and the district court. [999713146]. [15-4098]

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Appeal: 15-4098 Doc: 60 Filed: 12/07/2015 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4098 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AJAMU SAWANDI OSBORNE, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:12-cr-00155-1) Submitted: October 27, 2015 Decided: December 7, 2015 Before AGEE, DIAZ, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Troy N. Giatras, THE GIATRAS Virginia, for Appellant. R. Attorney, Monica D. Coleman, Charleston, West Virginia, for LAW FIRM, PLLC, Charleston, West Booth Goodwin II, United States Assistant United States Attorney, Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4098 Doc: 60 Filed: 12/07/2015 Pg: 2 of 5 PER CURIAM: Ajamu Sawandi Osborne pleaded guilty, pursuant to a written plea agreement, distribute (2012), a and to one quantity was count of sentenced of possession Oxycodone, to 70 21 with U.S.C. months’ intent to § 841(a)(1) imprisonment. He appeals, arguing that the district court abused its discretion in denying his motion to withdraw his guilty plea and in refusing to grant a reduction for acceptance of responsibility at sentencing. We affirm. I. After the court accepts a guilty plea, but before sentencing, a defendant may withdraw his guilty plea if he “can show a Fed. R. fair and Crim. P. just reason for 11(d)(2)(B). requesting The rule the does withdrawal.” not afford a defendant an absolute right to withdraw a guilty plea, however. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The burden of showing a fair and just reason for withdrawal of the plea rests with the defendant. Id. A fair and just reason “essentially challenges” the fairness of the Rule 11 proceeding. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). The district court’s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). 2 United States v. Appeal: 15-4098 Doc: 60 Filed: 12/07/2015 Pg: 3 of 5 This court has developed a nonexclusive list of factors for the district court to consider in deciding if the defendant has met his burden: (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 will inconvenience the court and waste judicial resources. Moore, 931 F.2d at 248. “The most important consideration in resolving a motion to withdraw a guilty colloquy [and] a plea is properly an evaluation conducted Rule of 11 . the Rule . colloquy . 11 leaves a defendant with a very limited basis upon which to have his plea withdrawn.” United States v. Bowman, 348 F.3d 408, 414 (4th “If Cir. proceeding 2003). is to serve an a appropriately meaningful conducted function, on Rule which 11 the criminal justice system can rely, it must be recognized to raise a strong presumption that the plea is final and binding.” United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). Here, we find that the district court fully complied with Rule 11 in conducting Osborne’s guilty plea colloquy. Osborne claimed in his motion to withdraw that his plea was not knowing or voluntary because 3 the police mishandled the Appeal: 15-4098 Doc: 60 evidence. Filed: 12/07/2015 Pg: 4 of 5 After a lengthy hearing, during which the district court heard testimony from Charleston Metro Drug Unit detectives regarding the chain of custody procedures employed by their department, the district court found that, applying the Moore factors, Osborne failed to establish a fair and just reason to allow him to withdraw his guilty plea. We find no abuse of discretion in the district court’s decision. II. The determination of whether a defendant is deserving of an acceptance of responsibility adjustment is a factual issue and thus reviewed for clear error. United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). “The sentencing judge is in a unique position responsibility, sentencing judge to and evaluate thus is . a . entitled defendant’s . to the great acceptance determination deference on of of the review.” Elliott v. United States, 332 F.3d 753, 761 (4th Cir. 2003) (internal quotations and brackets omitted). This court may reverse the district court’s finding only when “left with the definite and firm conviction that a mistake has been committed.” Dugger, 485 F.3d at 239 (internal quotation marks omitted). Section 3E1.1 of the U.S. Sentencing Guidelines Manual provides for a two-level reduction for a defendant who “‘clearly demonstrates acceptance of responsibility 4 for his offense.’” Appeal: 15-4098 Doc: 60 Filed: 12/07/2015 Pg: 5 of 5 United States v. Jeffery, 631 F.3d 669, 678 (4th Cir. 2011) (quoting USSG § 3E1.1(a)). defendant must establish “that has clearly he personal by To a merit for reduction, preponderance recognized responsibility this his the evidence affirmatively accepted and criminal of the conduct.” United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996). “[A] denial of relevant conduct is inconsistent with acceptance of responsibility.” Elliott, 332 F.3d at 761 (internal quotation marks omitted); see USSG § 3E1.1 cmt. n.1. district court did not clearly err We find that the when it concluded that Osborne’s motion to withdraw his guilty plea was inconsistent with acceptance of responsibility. III. For the reasons given, we affirm Osborne’s conviction and sentence. supplemental We deny brief Osborne’s and for motions to file reconsideration of a pro the se order deferring a ruling on that motion , as well as his motion “for review and mandamus of the clerk agency final act order.” We also deny Osborne’s motion for 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 5

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