US v. Wossen Assaye
UNPUBLISHED PER CURIAM OPINION filed denying Motion to file supplemental brief(s) [999854379-2]. Originating case number: 1:15-cr-00115-LMB-1. Copies to all parties and the district court. .. [15-4644]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:15-cr-00115-LMB-1)
December 28, 2016
January 13, 2017
Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven P. Hanna, Richmond, Virginia, for Appellant. Dana J.
Assistant United States Attorney, Alexandria, Virginia, for
Unpublished opinions are not binding precedent in this circuit.
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Wossen Assaye pled guilty pursuant to a plea agreement to
two counts of using, carrying, and brandishing a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii) (2012).
The district court sentenced
imprisonment, and he now appeals.
On appeal, Assaye argues that
the district court erred in denying his motion to withdraw his
guilty plea, and abused its discretion in denying his motion to
appoint new counsel.
The Government has moved to dismiss the
agreement and further asserts that Assaye’s claims are without
The plea agreement contained a waiver of Assaye’s appellate
rights, and we conclude that Assaye knowingly and voluntarily
executed the appellate waiver.
However, we find that the issues
raised on appeal are within the narrow class of alleged errors
See United States v. Copeland, 707 F.3d 522, 530 (4th
Cir. 2013) (listing such errors); United States v. Attar, 38
F.3d 727, 733 n.2 (4th Cir. 1994) (appeal waiver does not bar
“incorporates a colorable claim” of ineffective assistance).
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Turning to the substance of Assaye’s claims on appeal, we
When a defendant seeks to withdraw his guilty plea prior to
sentencing, a district court should consider six factors:
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 to withdraw the plea; (4) whether
the defendant had the close assistance of competent
counsel; (5) whether withdrawal will cause prejudice
inconvenience the court and waste judicial resources.
United States v. Nicholson, 676 F.3d 376, 384 (4th Cir. 2012).
We review denial of a motion to withdraw a guilty plea for abuse
Id. at 383.
As to the first factor, the district court’s thorough plea
colloquy and Assaye’s answers to the court’s questions confirm
that he knowingly and voluntarily pled guilty to the charges.
innocence; to the contrary, Assaye twice agreed to facts that
established his factual guilt.
Third, there was a significant
and unexplained delay between the entry of Assaye’s guilty plea
and the filing of any motion to withdraw that plea.
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The fourth factor is a closer question, but we conclude it
weighs against Assaye.
Although counsel provided Assaye with
some erroneous advice, it was ultimately irrelevant to the final
After extensive negotiations, counsel was able to
secure a substantial reduction in Assaye’s potential sentence.
stated that he was “fully satisfied” with counsel’s performance
in negotiating the plea agreement.
The fifth and sixth Moore
factors also weighed in favor of denying Assaye’s motion.
therefore conclude that the district court did not abuse its
discretion in denying Assaye’s motion. *
With regard to Assaye’s second claim, when a district court
subsequent inquiry; and (3) whether the attorney/client conflict
was so great that it had resulted in total lack of communication
preventing an adequate defense.”
United States v. Horton, 693
Nor does Assaye convince us that the district court abused
its discretion in failing to grant an evidentiary hearing on the
motion. See United States v. Moore, 931 F.2d 245, 248 (4th Cir.
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We review such a denial for abuse of discretion.
conclude that the district court did not abuse its discretion in
denying Assaye’s motion for replacement counsel.
Finally, although Assaye has filed a motion to submit a
supplemental pro se brief, because counsel filed a merits brief
on Assaye’s behalf, we deny Assaye’s motion.
See United States
v. Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011).
Consequently, we affirm Assaye’s convictions.
with oral argument because the facts and legal contentions are
argument would not aid the decisional process.
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