UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5712
JAMES EDGAR BURKE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5713
JAMES EDGAR BURKE,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Florence.
William B. Traxler, Jr., District Judge.
(CR-94-372, CR-94-503)
Submitted: February 13, 1997
Decided: February 27, 1997
Before WIDENER and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James Edgar Burke, Appellant Pro Se. Alfred William Walker
Bethea, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
James Burke, who pled guilty to wire fraud1 and bribing a prison
guard to allow him to escape,2 appeals the district court's refusal to
allow him to withdraw his guilty plea, and the court's upward depar-
ture from the federal sentencing guidelines. After a review of the
record, we find that the district court did not abuse its discretion in
denying Burke's motion to withdraw his guilty plea, and that the court
properly applied the sentencing guidelines. Therefore, we affirm
Burke's convictions and sentence.
First, Burke claims that the district court erred by refusing to grant
his motion to withdraw his guilty plea. Withdrawal of a guilty plea
is not a matter of right.3 Rule 32(e) of the Federal Rules of Criminal
Procedure provides that a court may permit withdrawal of a guilty
plea if the motion is made before sentencing and if the defendant
establishes any "fair and just" reason for withdrawal of the plea.
Burke has the burden of showing a "fair and just" reason for the with-
drawal, even if the government would not be prejudiced by the action.4
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1 18 U.S.C. § 1343 (1994).
2 18 U.S.C. § 201(b) (1994).
3 United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
4 FED. R. CRIM . P. 32(e); Moore, 931 F.2d at 248.
2
We review a motion to withdraw a plea under an abuse of discretion
standard.5
Burke contends that he should have been allowed to withdraw his
guilty plea because the government did not move under U.S.
SENTENCING GUIDELINES MANUAL § 5K1.1 (1995), for a downward
departure based on Burke's alleged substantial assistance. However,
Burke fails to meet his burden because Burke's right to a U.S.S.G.
§ 5K1.1 motion was contingent upon him actually providing substan-
tial assistance. Testimony at sentencing established that Burke's
information was of a general nature and could not be used in the
investigation and prosecution of other individuals. Because the dis-
trict court found that Burke did not provide substantial assistance, we
cannot say that refusing to allow Burke to withdraw a knowing and
voluntary guilty plea was an abuse of discretion.
Next, Burke claims that the district court in determining his sen-
tence used information in violation of his proffer agreement. Before
this claim can succeed, Burke must demonstrate a factual basis for his
claim by notifying the court of what specific information was
obtained and used improperly;6 yet, Burke fails to substantiate his
allegation. Before Burke signed his proffer agreement, the FBI had
investigated and gathered evidence of Burke's criminal conduct for
over three years. Testimony by government agents showed that all the
evidence used in determining Burke's relevant conduct came from the
government's efforts before Burke's proffer. Our review of the record
discloses that the district court did not use information provided by
Burke which was undiscovered by the government at the time of
Burke's proffer agreement.
Finally, Burke contends that the district court erred in imposing
sentence by departing upward from the sentencing guidelines. Specif-
ically, Burke claims that the court improperly used unconvicted crimi-
nal conduct in departing above the applicable sentencing guideline
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5 Moore, 931 F.2d at 248.
6 United States v. O'Brien, 853 F.2d 522, 527 (7th Cir. 1988).
3
range. We review decisions to depart from the sentencing guidelines
for abuse of discretion.7
If a defendant's properly computed criminal history does not ade-
quately reflect the seriousness of his past criminal conduct or the like-
lihood of his future criminal conduct, a court may depart upward.8
Additionally, uncharged conduct or conduct underlying dismissed
counts which are relevant conduct under U.S.S.G.§ 1B1.3 may be
considered in determining a sentence.9 At sentencing, the evidence
showed that Burke had been involved in multiple sophisticated inter-
national fraud schemes involving substantial sums of money for over
fifteen years. Further, the court found the likelihood of Burke continu-
ing his criminal activities after his release from prison was great. The
extent of departure was reasonable. Therefore, the district court did
not abuse its discretion by departing upward.
Accordingly, we affirm Burke's convictions and sentence. Addi-
tionally, we deny Burke's motion for bail. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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7 United States v. Koon, 518 U.S. ___, 64 U.S.L.W. 4512, 4516-17
(U.S. June 13, 1996) (Nos. 94-1664, 94-8842).
8 U.S.S.G. § 4A1.3; United States v. Wilson, 913 F.2d 136, 138-39 (4th
Cir. 1990).
9 See United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994) (acts
attributable to defendant under U.S.S.G. § 1B1.3(a)(1)).
4