UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4644
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WOSSEN ASSAYE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:15-cr-00115-LMB-1)
Submitted: December 28, 2016 Decided: January 13, 2017
Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven P. Hanna, Richmond, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Ankush Khardori, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wossen Assaye pled guilty pursuant to a plea agreement to
two counts of using, carrying, and brandishing a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii) (2012). The district court sentenced
Assaye to the mandatory minimum sentence of 32 years’
imprisonment, and he now appeals. On appeal, Assaye argues that
the district court erred in denying his motion to withdraw his
guilty plea, and abused its discretion in denying his motion to
appoint new counsel. The Government has moved to dismiss the
appeal based on an appellate waiver contained in the plea
agreement and further asserts that Assaye’s claims are without
merit.
The plea agreement contained a waiver of Assaye’s appellate
rights, and we conclude that Assaye knowingly and voluntarily
executed the appellate waiver. However, we find that the issues
raised on appeal are within the narrow class of alleged errors
that automatically fall outside the scope of an appellate
waiver. See United States v. Copeland, 707 F.3d 522, 530 (4th
Cir. 2013) (listing such errors); United States v. Attar, 38
F.3d 727, 733 n.2 (4th Cir. 1994) (appeal waiver does not bar
review of denial of motion to withdraw plea when motion
“incorporates a colorable claim” of ineffective assistance).
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Turning to the substance of Assaye’s claims on appeal, we
assume, without deciding, that his motion to convert his
sentencing to a status hearing served as the functional
equivalent of motions to withdraw his plea and to appoint
replacement counsel.
When a defendant seeks to withdraw his guilty plea prior to
sentencing, a district court should 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 to withdraw the plea; (4) whether
the defendant had the 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. Nicholson, 676 F.3d 376, 384 (4th Cir. 2012).
We review denial of a motion to withdraw a guilty plea for abuse
of discretion. Id. at 383.
As to the first factor, the district court’s thorough plea
colloquy and Assaye’s answers to the court’s questions confirm
that he knowingly and voluntarily pled guilty to the charges.
Furthermore, Assaye has offered no credible evidence of his
innocence; to the contrary, Assaye twice agreed to facts that
established his factual guilt. Third, there was a significant
and unexplained delay between the entry of Assaye’s guilty plea
and the filing of any motion to withdraw that plea.
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The fourth factor is a closer question, but we conclude it
weighs against Assaye. Although counsel provided Assaye with
some erroneous advice, it was ultimately irrelevant to the final
plea agreement, which was the result of several rounds of
negotiation. After extensive negotiations, counsel was able to
secure a substantial reduction in Assaye’s potential sentence.
Even after counsel’s erroneous advice came to light, Assaye
stated that he was “fully satisfied” with counsel’s performance
in negotiating the plea agreement. The fifth and sixth Moore
factors also weighed in favor of denying Assaye’s motion. We
therefore conclude that the district court did not abuse its
discretion in denying Assaye’s motion. *
With regard to Assaye’s second claim, when a district court
has denied a request by a defendant to replace his
court-appointed lawyer, we consider three factors: “(1) the
timeliness of the motion; (2) the adequacy of the court’s
subsequent inquiry; and (3) whether the attorney/client conflict
was so great that it had resulted in total lack of communication
preventing an adequate defense.” United States v. Horton, 693
F.3d 463, 467 (4th Cir. 2012) (internal quotation marks
*
Nor does Assaye convince us that the district court abused
its discretion in failing to grant an evidentiary hearing on the
motion. See United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991).
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omitted). We review such a denial for abuse of discretion. Id.
After reviewing the record in light of these factors, we
conclude that the district court did not abuse its discretion in
denying Assaye’s motion for replacement counsel.
Finally, although Assaye has filed a motion to submit a
supplemental pro se brief, because counsel filed a merits brief
on Assaye’s behalf, we deny Assaye’s motion. See United States
v. Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011).
Consequently, we affirm Assaye’s convictions. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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