US v. Ajamu Osborne

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.

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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

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evidence.

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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.’”

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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