UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4678
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY DEAN WHITE, a/k/a G,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:03-cr-00181-FDW)
Submitted: May 2, 2008 Decided: June 6, 2008
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William R. Terpening, ANDERSON TERPENING, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Dean White appeals the imposition of a life sentence
following his guilty plea pursuant to a written plea agreement to
one count of conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. §§ 841, 846,
851 (2000). On appeal, he challenges the district court’s finding
that the Government did not abuse its discretion in denying him a
second opportunity to provide substantial assistance following
violation of the conditions of his bond, the district court’s grant
of the Government’s motion to quash White’s subpoenas, and the
district court’s denial of White’s motion to withdraw his guilty
plea. We affirm.
The record reflects that White recognized explicitly in
the plea agreement, as well as during his Fed. R. Crim. P. 11
proceeding, that he was subject to a mandatory life sentence for
his crime. His plea agreement contained several terms relating to
his desire to cooperate with the Government, in exchange for a
reduced sentence in the form of a government motion for downward
departure for substantial assistance under U.S.S.G. § 5K1.1 (2006)
and 18 U.S.C. § 3553(e) (2000). Specifically, he agreed to
cooperate and provide truthful information. He represented that he
would “not violate any federal, state, or local law, or any order
of any court, including any conditions of pretrial, pre-sentence,
or post-sentence release.” White further represented that he
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“underst[ood] that any breach of [the] agreement . . . [would]
allow the government, in its sole discretion, to withdraw from its
obligations under [the] Plea Agreement.” (emphasis added). White
also specifically waived his right to attack or appeal the United
States’ exercise of its discretion, as well as his right to
withdraw his guilty plea. White argues no error with regard to his
Rule 11 proceeding and the acceptance of his plea.
Nine months after being released to cooperate, and
following his involvement in two controlled buys and assistance
which led to the arrest of an individual on drug trafficking
charges, White violated his plea agreement and the law. White was
arrested on July 18, 2005, for possession and possession with
intent to distribute crack cocaine, clear violations of several
conditions of his pretrial release. In addition, White failed to
immediately advise authorities of any change in his address or
telephone number, and was considered by the probation office to
have been an absconder from supervision from June 2005 until August
22, 2005, in further violation of his pretrial release. Finally,
he violated his pretrial release conditions because he failed to
report to his supervising U.S. Pretrial Services Officer as
instructed on two separate occasions. Despite his arrest warrant,
White did not turn himself in; he was taken into custody in January
2006 when he was rearrested on another charge.
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Following his rearrest, White’s lawyer arranged a meeting
with non-federal law enforcement officers to offer potential
assistance. White and his attorney assert the officers were
receptive. The United States Attorney declined to give White a
“second chance” at avoiding a life sentence.
At this juncture, White moved to withdraw his guilty plea
on the grounds that he was “unreasonably depriv[ed] of his ability
to continue providing substantial assistance.” At the hearing,
White testified that he had essentially been “set up” by a dealer
who became aware that he was cooperating with authorities. He
admitted that he had violated his bond, and that he had made a
mistake, but again promised to cooperate, claiming to have “learned
[his] lesson.” White put on evidence that he had moved in with his
father, and did not have a telephone. At the hearing on the
motion, White’s attorney reaffirmed that the plea itself was
“knowing and voluntary.” Following the magistrate judge’s
recommendation to deny the motion to withdraw, White’s counsel
subpoenaed the U.S. Attorney’s office and the probation office for
comprehensive records pertaining to other bond violators, in an
effort to establish that the Government’s decision to deny White a
second chance at cooperation was irrational. The Government moved
to quash the subpoenas.
The district court conducted a hearing on both the
subpoena issue and White’s request for a de novo hearing on his
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motion to withdraw his plea. Following White’s attorney’s
acknowledgment that the records he sought by subpoena were public
but that the subpoena would save him money and time in researching
the information, the district court granted the Government’s motion
to quash. The district court then considered White’s motion to
withdraw his plea. While White claimed to have found eight
instances of disparate treatment in the information he had found
relative to bond violators being given a second chance at
cooperating to achieve a § 5K1.1 reduction, he did agree with the
district court that the majority of defendants who violate bond are
sentenced, as he ultimately was, to their statutorily imposed
sentences. White’s position was that any inconsistent treatment
among defendants deprived him of his rights and constituted grounds
to support the withdrawal of his plea.
In denying White’s motion to withdraw, the district court
addressed each of the Moore1 factors, and found that White’s plea
was knowing and voluntary, that White had not credibly asserted his
innocence, and expressly adopted the magistrate judge’s uncontested
report as to the other factors. The district court found no bad
faith, unconstitutional motive, or irrational act by the
Government, and determined that White indisputably had violated and
ignored the procedure for cooperation. White timely appealed from
the imposition of the statutorily mandated life sentence.
1
See United States v. Moore, 931 F.2d 245 (4th Cir. 1991).
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White first challenges the district court’s finding that
the Government did not abuse its discretion in denying White a
second opportunity to provide substantial assistance following his
violation of the conditions of his bond. He contends both that the
Government abused its discretion, and that the district court erred
in failing to shift the burden to the Government to demonstrate any
rational relationship to a legitimate governmental purpose in
denying White a second opportunity to cooperate.
The decision to file a § 5K1.1 motion rests solely within
the government’s discretion. United States v. Butler, 272 F.3d
683, 686 (4th Cir. 2001). Therefore, unless the government has
obligated itself in a plea agreement to file a substantial
assistance motion, its refusal to do so is not reviewable unless it
was based on an unconstitutional motive such as race or religious
animus, or not rationally related to a legitimate government end.
Wade v. United States, 504 U.S. 181, 185-87 (1992); Butler, 272
F.3d at 686.
Here, White’s plea agreement reflects unequivocally that
the Government retained sole discretion in the determination of
whether to file a § 5K1.1 motion on White’s behalf, and this
discretion included the right not to seek a sentence reduction for
White’s failure to cooperate. The Government never relinquished
this discretion. The ample evidence of White’s breaches of his
agreement as to cooperation, including White’s admissions of his
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failures, provides a sufficient basis for the Government’s refusal
to allow further opportunities for White to cooperate.
Moreover, we find White’s argument of Governmental
irrationality or caprice to be unpersuasive. There is no evidence
that the Government acted in bad faith or with an improper motive.
The Government simply concluded that White had breached one too
many provisions of his agreement. While White asserts that the
eight examples allegedly supporting his position are sufficient to
establish irrationality, the district court properly held that,
even assuming that White’s examples illustrated that eight
individuals were treated differently by the Government, his
evidence failed to establish irrationality. First, as White
stipulated, he was treated just as the majority of violating
cooperators in his own examples were treated; that is, that no
substantial assistance adjustment was proffered by the government
and they were not given further opportunities for cooperation.
Second, there is no case law supporting White’s proposition.2
Deterring criminal conduct is a rational governmental interest that
2
While White relies on United States v. Wilson, 390 F.3d 1003
(7th Cir. 2004), the Government in Wilson admitted at sentencing
that the defendant cooperated and that his assistance was
substantial enough to qualify for a downward departure. Here, in
contrast, White cooperated only partially before breaching his
obligations, his promises of future helpfulness were self-serving
and vague, and the United States Attorney has indicated that his
assistance was not substantial. Plus, the defendant in Wilson did
not commit a crime while attempting to cooperate, as White did in
this case.
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sufficiently supports the government’s refusal to make a
substantial assistance motion. See United States v. Butler, 272
F.3d 683, 687 (4th Cir. 2001). Moreover, “mere allegations of
unconstitutional motive on behalf of the prosecutor are not enough
to carry [the defendant’s] burden.” United States v. LeRose, 219
F.3d 335, 342 (4th Cir. 2000), and White has not provided evidence
sufficient to support his claim of governmental irrationality.3
We also find to be without merit White’s challenge to the
district court’s action in quashing White’s subpoenas, through
which he sought to obtain evidence that the Government’s refusal to
allow White a second opportunity to provide substantial assistance
was arbitrary. We review for abuse of discretion the denial of
requests for discovery. United States v. Fowler, 932 F.2d 306, 311
(4th Cir. 1991). To require productions, courts have required that
subpoenas cover (1) relevant evidentiary materials or documents;
(2) that are not otherwise procurable by exercise of due diligence;
(3) which the party cannot properly prepare for trial without; and
(4) which is not intended as a fishing expedition. United States
v. Nixon, 418 U.S. 683, 699-700 (1974).
As the district court recognized in quashing the
subpoenas, White stated on more than one occasion that the
3
White’s mere mention of race as a possible issue implicating
the “unconstitutional motive” test, and his contention that his
subpoenas could have revealed a disproportionate racial impact, are
wholly conclusory and without any evidentiary support.
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information he sought was publicly available. He admitted that the
purpose of the subpoenas was to save him time and money in
retrieving the desired information. Moreover, the record reflects
that the offices White subpoenaed did not keep the records he
sought in the format in which he sought them, and that they would
have had to devote the same financial and man-hour expenditures to
compile the information in the same fashion as White would have had
to do. Accordingly, White was unable to establish, under the Nixon
standards, that the information he sought was not otherwise
procurable by exercise of due diligence. Nixon, 418 U.S. at 699.
On these facts, we find no abuse of the district court’s discretion
in granting the Government’s motion to quash.
Nor do we find abuse of the district court’s discretion
in its denial of White’s motion to withdraw his guilty plea. See
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A
defendant bears the burden of demonstrating that a “fair and just
reason” supports his request to withdraw his plea. United States
v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
White received an adequate Fed. R. Crim. P. 11 hearing,
which creates a strong presumption that his guilty plea was final
and binding. United States v. Puckett, 61 F.3d 1092, 1099 (4th
Cir. 1995). White argues, however, that despite that his plea was
entered into knowingly and voluntarily, the Government’s refusal to
allow him a second chance at cooperating somehow vitiates the
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knowing and voluntary nature of his plea. It does not. Moreover,
there is no question that it was completely within the Government’s
discretion whether to move for a downward departure, Butler, 272
F.3d at 686, and it is clear that White understood the Government’s
sole discretion in all issues relating to cooperation and his plea-
agreement obligation not to violate the law. White violated
numerous terms of both his plea agreement and his pretrial
service/bond requirements, violations to which he admits. There is
no case law supporting his position that the courts can force the
government to provide to a defendant a second chance at
cooperating, absent a finding that such refusal was based on an
unconstitutional motive such as race or religion, neither of which
have been established in this case. Plus, White does not claim he
was innocent of the charges on which the plea agreement was based,
nor does he claim that he was subject to incompetent counsel during
the relevant proceedings. See Moore, 931 F.2d at 248. Contrary to
White’s claim, the record amply reflects that the district court
thoroughly considered White’s claim of unfairness and unjustness,
in holding him to his plea. White has not established a fair and
just reason to withdraw his guilty plea, and there is no abuse of
the district court’s discretion in denying his motion to do so.
Finally, we decline White’s invitation to supplement the standard
set forth by this court in Moore.
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Accordingly, we affirm White’s sentence. 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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