UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4680
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN HEATH DOSS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. James C. Turk, Senior
District Judge. (4:09-cr-00006-jct-3)
Submitted: April 27, 2011 Decided: May 19, 2011
Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Randy V. Cargill,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, Jean B. Hudson,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Heath Doss pled guilty, without a written plea
agreement, to conspiracy to possess with the intent to
distribute five kilograms or more of cocaine hydrochloride, and
100 kilograms or more of marijuana, in violation of 21 U.S.C. §§
841(a), 846 (2006). Doss was sentenced as a career offender to
360 months’ imprisonment to run concurrent with the fifty-year
state sentence without parole imposed for offenses that were
included as relevant conduct to the instant offense of
conviction. On appeal, Doss argues that the district court
erred in denying his motion to withdraw his guilty plea, and by
denying him credit for acceptance of responsibility without
explanation. By failing to explain its reasons for denying
credit, argues Doss, the district court implicitly accepted the
Government’s argument that he was not entitled to credit because
he attempted to withdraw his guilty plea. We affirm.
We review a district court’s denial of a defendant’s
motion to withdraw his guilty plea for abuse of discretion.
United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir. 1992) (en
banc). A defendant does not have an absolute right to withdraw
a guilty plea. United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991). A motion to withdraw should be granted only if the
defendant advances a fair and just reason for doing so. Id.
“The most important consideration in resolving a motion to
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withdraw a guilty plea is an evaluation of the Rule 11 colloquy
at which the guilty plea was accepted.” United States v.
Bowman, 348 F.3d 408, 414 (4th Cir. 2003); United States v.
Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996). If the plea was
knowingly and voluntarily entered with the close assistance of
competent counsel during a properly conducted Rule 11 guilty
plea colloquy, the defendant is left with a very limited basis
upon which to have his plea withdrawn. Bowman, 348 F.3d at 414.
The district court may, however, consider several
other factors in determining “whether the defendant had advanced
a fair and just reason.” Id. They include:
(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.
Moore, 931 F.2d at 248. We have reviewed the record and
conclude that Doss’s plea was knowing and voluntary, that the
district court fully complied with the Fed. R. Crim. P. 11
requirements when accepting his plea, and Doss has not
demonstrated on this record that he advanced a fair and just
reason for withdrawing the plea. Thus, we conclude that the
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district court did not abuse its discretion in rejecting Doss’s
motion to withdraw his plea.
Nor did the district court err in denying Doss’s
request for a reduction for acceptance of responsibility. A
district court’s determination regarding acceptance of
responsibility is factual in nature and will not be reversed
unless clearly erroneous. United States v. Hargrove, 478 F.3d
195, 198 (4th Cir. 2007). “Conduct resulting in an enhancement
under § 3C1.1 (Obstructing or Impeding the Administration of
Justice) ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct. After
reviewing the record, we conclude that the district court was
amply justified in finding that Doss was not entitled to an
adjustment for acceptance of responsibility and that the court
adequately explained its reasoning.
Accordingly, 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
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