UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4355
DERRICK WOODS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4367
KEITH WOODS,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-98-1172)
Submitted: February 15, 2000
Decided: March 9, 2000
Before WILKINS, NIEMEYER, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
W. Douglas Richardson, Jr., HENDRICKS LAW FIRM, P.A., Eas-
ley, South Carolina; James F. Brehm, Greenville, South Carolina, for
Appellants. J. Rene Josey, United States Attorney, Harold W. Gowdy,
III, Assistant United States Attorney, Isaac L. Johnson, Jr., Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Derrick and Keith Woods were convicted pursuant to their guilty
pleas of conspiracy to possess with intent to distribute crack cocaine.
On appeal, Derrick Woods ("Derrick") alleges that he is entitled to
specific performance of the Government's promise that he would not
be classified as a career offender. Keith Woods ("Keith") claims that
the district court erred by enhancing his base offense level for
obstruction of justice under USSG § 3C1.1; 1 refusing to grant him a
downward adjustment for acceptance of responsibility under USSG
§ 3E1.1; and denying his motion to withdraw his guilty plea. Finding
no reversible error, we affirm.
The basic facts of this case are rather straightforward. Appellants
were street-level dealers in a drug conspiracy operating in Union
County, South Carolina. They were arrested after selling crack
cocaine to undercover police officers in videotaped transactions.
During a pretrial conference, Derrick's attorney requested an opin-
ion from the probation officer as to Derrick's status as a career
offender. The probation officer reviewed Derrick's rap sheet and
allegedly told counsel that he would not be classified as a career
offender. In Derrick's presentence report, however, the probation offi-
cer recommended that he be given career offender status. Derrick
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1 U.S. Sentencing Guidelines Manual (1998).
2
alleges on appeal that the probation officer's opinion following the
pretrial conference constituted a promise that induced his guilty plea.
Because Derrick did not raise this issue before the district court,2
we review his assertion for plain error and find none.3 First, Derrick's
presentence report clearly shows that he has the necessary predicate
convictions for career offender status. Although counsel objected to
the applicability of one of those convictions, the district court prop-
erly overruled the objection. Second, Derrick stipulated in his plea
agreement that any estimates he received from anyone concerning his
sentence were only predictions and not binding on the Government or
the court.4 Derrick informed the court that he understood the terms of
the plea agreement, and there is nothing in the record to suggest that
the plea was unknowing or involuntary.
We review the district court's finding that Keith Woods committed
perjury for clear error and find none.5 Although Keith admitted in his
plea agreement and during his Fed. R. Crim. P. 11 hearing that he was
guilty of conspiracy and that he distributed at least five grams of
crack cocaine, he challenged both of these findings during sentencing.
Specifically, Keith testified that he only distributed one to two grams
of crack cocaine, and then only on the occasions in which he was cap-
tured on videotape. Keith further claimed that he did not conspire
with anyone to distribute the drugs; rather, he only sold those drugs
he found lying on the ground in an area in which police made numer-
ous drug arrests.
The district court found Keith's testimony so incredible that it
amounted to an attempt to intentionally mislead the court as to a
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2 Although defense counsel stated in his objections to the presentence
report that the probation officer did not tell him that Derrick would be
classified as a career offender, at no point did Derrick allege that the pro-
bation officer's opinion induced him to plead guilty.
3 See United States v. Olano, 507 U.S. 725, 732-36 (1993); United
States v. Ford, 88 F.3d 1350, 1355 (4th Cir. 1996) ("A defendant's fail-
ure to object to a sentencing issue amounts to a waiver of his right to
raise that issue on appeal, absent plain error.").
4 Supplemental joint appendix at 4.
5 See United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995).
3
material matter, namely the amount of drugs attributable to him and
his ultimate guilt. We agree. Keith's implausible story of simply find-
ing drugs on the street directly contradicted his sworn admissions at
his plea hearing and was clearly intended to limit his culpability.6
When a defendant receives an enhancement for obstruction of jus-
tice, a downward adjustment for acceptance of responsibility is only
justified in exceptional circumstances, and we find no such circum-
stances here.7 As a result, the district court properly declined to grant
the adjustment.
We review a trial court's refusal to allow a defendant to withdraw
his guilty plea for an abuse of discretion, and we find none here.8 A
defendant does not have an absolute right to withdraw a guilty plea,
but rather bears the burden of showing a fair and just reason for the
withdrawal.9 A "fair and just" reason "is one that essentially chal-
lenges . . . the fairness of the Rule 11 proceeding." United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
In the present case, however, Keith's primary bases for withdraw-
ing his plea were his disagreement with the testimony of a co-
conspirator and his incredible story of merely finding the drugs on the
street. We find that neither of these reasons cause us to question the
integrity of the Rule 11 hearing. There is nothing in the record to sug-
gest that Keith's plea was unknowing or involuntary.
Accordingly, we affirm Derrick and Keith Woods' convictions and
sentences. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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6 We further reject Keith's claim that the only evidence presented
against him for purposes of the enhancement was the testimony of an
unreliable co-conspirator and that this testimony alone was insufficient.
Not only does this ignore Keith's prior admissions, but the district court
resolved the credibility issue against him.
7 See USSG § 3E1.1, comment. (n.4).
8 See United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993).
9 See Fed. R. Crim. P. 32(d); United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991).
4