United States v. Beahm

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4353
WESLEY KEVIN BEAHM,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-00-10)

Submitted: October 24, 2001

Decided: November 19, 2001

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

COUNSEL

Michael T. Hemenway, Charlottesville, Virginia, for Appellant. Ruth
E. Plagenhoef, United States Attorney, Thomas J. Bondurant, Jr.,
Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BEAHM
OPINION

PER CURIAM:

Wesley Kevin Beahm pled guilty to interstate domestic violence
resulting in death, 18 U.S.C.A. § 2261(a)(1), (b)(1) (West 2000 &
Supp. 2001), and use of a firearm in a crime of violence resulting in
first degree murder, 18 U.S.C.A. § 924(j)(1) (West 2000). He was
sentenced to a term of life imprisonment. On appeal, Beahm contends
that the district court erred in denying his motion to withdraw his
guilty plea. He also challenges the calculation of his guideline range.
We affirm in part, and dismiss in part.

A district court’s denial of a motion to withdraw a guilty plea is
reviewed for abuse of discretion. United States v. Ubakanma, 215
F.3d 421, 424 (4th Cir. 2000). The defendant has the burden of dem-
onstrating "a fair and just reason" for withdrawal. Fed. R. Crim. P.
32(e); Ubakanma, 215 F.3d at 424. A "fair and just reason" is one that
challenges the fairness of the guilty plea colloquy conducted pursuant
to Rule 11 of the Federal Rules of Criminal Procedure. United States
v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). To determine whether
a defendant has shown a fair and just reason for withdrawal, a trial
court should consider the six factors set out in United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). Ubakanma, 215 F.3d at 424. The
Moore factors are: (1) whether the defendant has offered credible evi-
dence that the plea was not knowing or voluntary; (2) whether the
defendant has credibly asserted his legal innocence; (3) whether there
has been a delay between entry of the plea and filing of the motion;
(4) whether the defendant has had close assistance from competent
counsel; (5) whether withdrawal will prejudice the government; and
(6) whether it will inconvenience the court and waste judicial
resources. Although all the factors in Moore must be given appropri-
ate weight, the key to determining whether a motion to withdraw a
guilty plea should be granted is whether the Rule 11 hearing was
properly conducted. Puckett, 61 F.3d at 1099. This court closely scru-
tinizes the Rule 11 colloquy. An adequate Rule 11 proceeding creates
a strong presumption that the guilty plea is binding. Having reviewed
the record of the two hearings conducted in the district court on
Beahm’s two motions to withdraw his guilty plea, we find no abuse
of discretion in the district court’s denial of Beahm’s motion.
 UNITED STATES v. BEAHM 3
Beahm’s plea agreement provided that Beahm waived his right to
appeal his sentence unless the court departed upward from the guide-
line range. At the guilty plea hearing, the district court questioned
Beahm about the waiver provision, and Beahm stated that he was
willing to waive his right to appeal his sentence. Beahm does not
address the waiver provision in his plea agreement, but argues that
both contested adjustments were erroneous because he had no knowl-
edge that anyone would harm the victims.

A defendant whose plea agreement contains an express waiver of
the right to appeal may not appeal his sentence unless the waiver is
shown to be unknowing or involuntary. United States v. Brown, 232
F.3d 399, 403 (4th Cir. 2000); see also United States v. Marin, 961
F.2d 493, 496 (4th Cir. 1992). Our review of the plea agreement and
the record of the plea colloquy reveal that the waiver was knowing
and voluntary. Moreover, the sentence did not exceed the statutory
maximum penalty and there is no evidence that it was based on a con-
stitutionally impermissible factor. Marin, 961 F.2d at 496. We there-
fore lack jurisdiction over this portion of the appeal.

Accordingly, we affirm Beahm’s conviction but dismiss that por-
tion of the appeal which seeks to challenge the sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED IN PART, DISMISSED IN PART