UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4002
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD GASCHLER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00007-FPS-JES-3)
Submitted: August 11, 2010 Decided: September 8, 2010
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Patricia Valentino Kutsch, KUTSCH LAW OFFICES, Wheeling, West
Virginia, for Appellant. Betsy C. Jividen, United States
Attorney, Randolph J. Bernard, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to the terms of his written plea agreement,
Donald Gaschler pled guilty to conspiracy to possess with intent
to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(C),
846 (2006) (“Count One”), and possession of firearms in relation
to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (2006) (“Count Five”). While free on bond
prior to sentencing, Gaschler facilitated the Government’s
arrest and prosecution of two individuals. As a result, the
Government filed a motion, pursuant U.S. Sentencing Guidelines
Manual § 5K1.1 (2008), for a downward departure in Gaschler’s
sentence.
When Gaschler failed to appear for sentencing,
however, the Government requested that the district court permit
it to withdraw the § 5K1.1 motion. The Government argued that,
despite Gaschler’s assistance being substantial, his subsequent
conduct — failing to appear at sentencing, fleeing, and evading
capture — was inconsistent with a § 5K1.1 motion. Over defense
counsel’s objection, the district court permitted the withdrawal
of the § 5K1.1 motion. The district court sentenced Gaschler to
115 months’ imprisonment, consisting of fifty-five months on
Count One and sixty months, consecutive, on Count Five. This
appeal timely followed.
2
Gaschler’s sole appellate contention is that the
district court erred in permitting the Government to withdraw
its § 5K1.1 motion. For the reasons that follow, we reject this
argument and affirm the district court’s judgment.
We review legal questions concerning the application
of the Sentencing Guidelines de novo and review factual
determinations for clear error. United States v. Manigan, 592
F.3d 621, 626 (4th Cir. 2010) (internal quotation marks
omitted). Thus, this court will defer to the district court’s
factual determinations underlying its conclusion that the
Government had a rational basis for seeking to withdraw its
motion for a downward departure, “[b]ut . . . will look afresh
at the court’s legal conclusion that those facts constitute a
rational basis for the government’s decision.” United States v.
Butler, 272 F.3d 683, 686 (4th Cir. 2001); see also United
States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991) (reviewing
for clear error district court’s finding that the government did
not breach the plea agreement by failing to make a § 5K1.1
motion).
As the district court rightly concluded, Gaschler’s
contention that his post-assistance, pre-sentencing conduct did
not support the Government’s request to withdraw the § 5K1.1
motion is contrary to our circuit precedent. See United States
v. David, 58 F.3d 113 (4th Cir. 1995). As we held in David,
3
“the defendant’s obligation to appear for sentencing at the time
appointed by the district court” is implicit in the parties’
agreement pertaining to a § 5K1.1 motion. Id. at 115. It is
undisputed that Gaschler, like the defendant in David, failed to
appear at his sentencing hearing. Accordingly, the district
court did not commit any clear error in its factual findings or
otherwise err in concluding that this conduct supported the
withdrawal of the Government’s § 5K1.1 motion. See Butler, 272
F.3d at 686.
For these reasons, we affirm the district court’s
judgment. 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
4