UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4689
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNELL EDWARD CALLAHAM,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:08-cr-00052-jpj-pms-1)
Submitted: October 7, 2010 Decided: November 2, 2010
Before GREGORY, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
A. Benton Chafin, Jr., CHAFIN LAW FIRM, P.C., Lebanon, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, A.
Benjamin Spencer, Special Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donnell Edward Callaham pled guilty, pursuant to a
plea agreement, to knowingly possessing firearms after having
been convicted of a felony, in violation of 18 U.S.C. § 922(g)
(2006), possession of stolen firearms, in violation of 18 U.S.C.
§ 922(j), possessing a firearm with the manufacturer’s serial
number removed, obliterated, and altered, in violation of 18
U.S.C. § 922(k), and conspiracy to possess stolen firearms and
to possess a firearm with the manufacturer’s serial number
removed, obliterated, and altered, in violation of 18 U.S.C.
§ 371 (2006). Callaham’s subsequent motion to withdraw his plea
was denied after a hearing. The district court sentenced
Callaham to 324 months’ imprisonment. On appeal, Callaham
contests the magistrate judge’s denial of his motion to withdraw
his guilty plea and the district court’s imposition of a two-
level enhancement under U.S. Sentencing Guidelines Manual (USSG)
§ 3C1.2 (2007). For the following reasons, we affirm.
We review a lower court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United States
v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003). Federal Rule of
Criminal Procedure 11 authorizes the withdrawal of a guilty plea
before sentencing if “the defendant can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). We have explained that a defendant has no
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“absolute right” to withdraw a guilty plea, and that the
district court has discretion to decide whether a “fair and just
reason” exists. United States v. Ubakanma, 215 F.3d 421, 424
(4th Cir. 2000). We have also explained that “the most
important consideration in resolving a motion to withdraw a
guilty plea is an evaluation of the Rule 11 colloquy at which
the guilty plea was accepted.” Bowman, 348 F.3d at 414.
Accordingly, a lower court’s “inquiry is ordinarily confined to
whether the underlying plea was both counseled and voluntary.”
United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993)
(internal quotation marks omitted). “A properly conducted Rule
11 guilty plea colloquy leaves a defendant with a very limited
basis upon which to have his plea withdrawn.” Bowman, 348 F.3d
at 414. In reviewing the denial of a motion to withdraw a
guilty plea, we consider six factors: (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). Our review of the record leads us to conclude
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that the magistrate judge properly applied these factors and did
not abuse her discretion in denying Callaham’s motion to
withdraw his guilty plea.
Next, Callaham contends that the district court erred
in applying a two-level enhancement under USSG § 3C1.2 for
reckless endangerment. We review the district court’s
application of the reckless endangerment enhancement for clear
error. United States v. Carter, 601 F.3d 252, 254 (4th Cir.
2010). The Government has the burden of proving an enhancement
by the preponderance of the evidence. United States v. Hill,
322 F.3d 301, 307 (4th Cir. 2003). The Guidelines provide for a
two-level enhancement “[i]f the defendant recklessly created a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.”
USSG § 3C1.2. Applying the relevant legal principles to the
evidence and testimony adduced at the sentencing hearing leaves
us without doubt that the district court did not clearly err in
imposing the enhancement in this case.
Accordingly, we affirm Callaham’s convictions and
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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