UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNIE WELCH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:06-cr-00191-1)
Submitted: July 9, 2008 Decided: August 19, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Travis E. Ellison, III, JOHN R. MITCHELL, L.C., Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Monica K. Schwartz, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donnie Welch pled guilty pursuant to a written plea
agreement to possession of an unregistered bomb, making false
statements to federal agents, possession of a firearm by an addict,
and committing perjury during grand jury proceedings, in violation
of 18 U.S.C. §§ 922(g)(3); 1001; 1623; 26 U.S.C. § 5861(d) (2000).
Welch was sentenced to a total of 262 months’ imprisonment.
Finding no error, we affirm.
On appeal, Welch contends the district court erred in
denying his motion to withdraw his guilty plea. A defendant may
withdraw a guilty plea prior to sentencing if he “can show a fair
and just reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). In determining whether a defendant will be permitted
to withdraw his guilty plea, a district court should consider:
(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.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). We
review a district court’s denial of a motion to withdraw a guilty
plea for abuse of discretion. United States v. Ubakanma, 215 F.3d
421, 424 (4th Cir. 2000). Further, we closely scrutinize the Rule
11 colloquy and attach a strong presumption that the plea is final
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and binding if the Rule 11 hearing is adequate. United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
As noted by the district court, and conceded by Welch on
appeal, the motion to withdraw the guilty plea was not predicated
on an assertion of legal innocence. Instead, Welch argues, as he
did in the district court, that he would not have pled guilty if he
had known that he was subject to a six-level enhancement under U.S.
Sentencing Guidelines Manual § 3A1.2(b) (2006). However, during
the properly conducted Rule 11 hearing, Welch acknowledged the plea
agreement provision explaining that neither the court nor the
probation office was bound by the parties’ estimate of the
Guidelines calculation. The court explained in detail the
procedure for determining the advisory guideline range and stated
that the applicable range would “not become clear” until the
presentence report was finalized, including the resolution of any
objections thereto. Likewise, the court informed Welch that he was
subject to a total statutory maximum of thirty years’ confinement.
Considering all of the Moore factors, and Welch’s failure to
overcome the presumption that his plea is final and binding, we
conclude the district court did not abuse its discretion in denying
Welch’s motion to withdraw his guilty plea.
Welch also contends that the district court erred in its
application of USSG § 3A1.2(b). The Government asserts that Welch
is foreclosed from raising this issue based on the appellate waiver
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provision in the plea agreement. According to the terms of the
agreement, Welch waived his right to appeal the reasonableness of
any sentence within the applicable advisory guideline range.
Welch, however, retained the right to appeal a properly preserved
objection to the district court’s Guidelines calculation. Because
Welch challenges his sentence based on a properly preserved
objection to the court’s application of § 3A1.2(b), we conclude the
appeal waiver is inapplicable.
When reviewing the district court’s application of the
Sentencing Guidelines, we review findings of fact for clear error
and questions of law de novo. United States v. Green, 436 F.3d
449, 456 (4th Cir. 2006). Welch does not dispute that his intended
victim was a law enforcement officer and that § 3A1.2(b) is
applicable. Rather, Welch argues that it would be unfair to apply
the six-level enhancement in this case because, due to an
oversight, the other individual involved in the crime was not
subjected to the enhancement. Welch reasons that application of
the enhancement would result in an unwarranted disparate sentence
as contemplated by 18 U.S.C. § 3553(a)(6) (2000).
While it appears that the enhancement was not applied in
the related case, such error does not justify affording Welch a
windfall. See United States v. Ellis, 975 F.2d 1061, 1066 n.2 (4th
Cir. 1992). Moreover, we have previously rejected a similar
argument, stating that “‘the kind of “disparity” with which
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§ 3553(a)(6) is concerned is an unjustified difference across
judges (or districts) rather than among defendants to a single
case.’” United States v. Pyles, 482 F.3d 282, 290 (4th Cir. 2007)
(quoting United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.
2006)), vacated on other grounds, 128 S. Ct. 865 (2008) (vacating
for consideration in light of Gall v. United States, 128 S. Ct. 586
(2007)). Welch has failed to establish that his sentence is
disparate among the broader scope of similarly situated defendants.
Consequently, we conclude the district court did not err in
applying USSG § 3A1.2(b).
Accordingly, we affirm the judgment of the district
court. 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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