UNITED STATES of America, Plaintiff—Appellee, v. Gary Dean WHITE, a/k/a G, Defendant—Appellant.
No. 07-4678.
United States Court of Appeals, Fourth Circuit.
Submitted: May 2, 2008. Decided: June 6, 2008.
281 Fed. Appx. 318
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Dean White appeals the imposition of a life sentence following his guilty plea pursuant to a written plea agreement to one count of conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of
The record reflects that White recognized explicitly in the plea agreement, as well as during his
Nine months after being released to cooperate, and following his involvement in two controlled buys and assistance which led to the arrest of an individual on drug trafficking charges, White violated his plea agreement and the law. White was arrested on July 18, 2005, for possession and possession with intent to distribute crack cocaine, clear violations of several conditions of his pretrial release. In addition, White failed to immediately advise authorities of any change in his address or telephone number, and was considered by the probation office to have been an absconder from supervision from June 2005 until August 22, 2005, in further violation of his pretrial release. Finally, he violated his pretrial release conditions because he failed to report to his supervising U.S. Pretrial Services Officer as instructed on two separate occasions. Despite his arrest warrant, White did not turn himself in; he was taken into custody in January 2006 when he was rearrested on another charge.
Following his rearrest, White‘s lawyer arranged a meeting with non-federal law enforcement officers to offer potential assistance. White and his attorney assert the officers were receptive. The United States Attorney declined to give White a “second chance” at avoiding a life sentence.
At this juncture, White moved to withdraw his guilty plea on the grounds that he was “unreasonably depriv[ed] of his ability to continue providing substantial assistance.” At the hearing, White testified that he had essentially been “set up” by a dealer who became aware that he was cooperating with authorities. He admitted that he had violated his bond, and that he had made a mistake, but again promised to cooperate, claiming to have “learned [his] lesson.” White put on evidence that he had moved in with his father, and did not have a telephone. At the hearing on the motion, White‘s attorney reaffirmed that the plea itself was “knowing and voluntary.” Following the magistrate judge‘s recommendation to deny the motion to withdraw, White‘s counsel subpoenaed the U.S. Attorney‘s office and the probation office for comprehensive records pertaining to other bond violators, in an effort to establish that the Government‘s decision to deny White a second chance at cooperation was irrational. The Government moved to quash the subpoenas.
The district court conducted a hearing on both the subpoena issue and White‘s request for a de novo hearing on his motion to withdraw his plea. Following White‘s attorney‘s acknowledgment that the records he sought by subpoena were public but that the subpoena would save him money and time in researching the information, the district court granted the Government‘s motion to quash. The district court then considered White‘s motion to withdraw his plea. While White claimed to have found eight instances of disparate treatment in the information he had found relative to bond violators being given a second chance at cooperating to achieve a
In denying White‘s motion to withdraw, the district court addressed each of the
White first challenges the district court‘s finding that the Government did not abuse its discretion in denying White a second opportunity to provide substantial assistance following his violation of the conditions of his bond. He contends both that the Government abused its discretion, and that the district court erred in failing to shift the burden to the Government to demonstrate any rational relationship to a legitimate governmental purpose in denying White a second opportunity to cooperate.
The decision to file a
Here, White‘s plea agreement reflects unequivocally that the Government retained sole discretion in the determination of whether to file a
Moreover, we find White‘s argument of Governmental irrationality or caprice to be unpersuasive. There is no evidence that the Government acted in bad faith or with an improper motive. The Government simply concluded that White had breached one too many provisions of his agreement. While White asserts that the eight examples allegedly supporting his position are sufficient to establish irrationality, the district court properly held that, even assuming that White‘s examples illustrated that eight individuals were treated differently by the Government, his evidence failed to establish irrationality. First, as White stipulated, he was treated just as the majority of violating cooperators in his own examples were treated; that is, that no substantial assistance adjustment was proffered by the government and they were not given further opportunities for cooperation. Second, there is no case law supporting White‘s proposition.2 Deter-
We also find to be without merit White‘s challenge to the district court‘s action in quashing White‘s subpoenas, through which he sought to obtain evidence that the Government‘s refusal to allow White a second opportunity to provide substantial assistance was arbitrary. We review for abuse of discretion the denial of requests for discovery. United States v. Fowler, 932 F.2d 306, 311 (4th Cir.1991). To require productions, courts have required that subpoenas cover (1) relevant evidentiary materials or documents; (2) that are not otherwise procurable by exercise of due diligence; (3) which the party cannot properly prepare for trial without; and (4) which is not intended as a fishing expedition. United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).
As the district court recognized in quashing the subpoenas, White stated on more than one occasion that the information he sought was publicly available. He admitted that the purpose of the subpoenas was to save him time and money in retrieving the desired information. Moreover, the record reflects that the offices White subpoenaed did not keep the records he sought in the format in which he sought them, and that they would have had to devote the same financial and man-hour expenditures to compile the information in the same fashion as White would have had to do. Accordingly, White was unable to establish, under the Nixon standards, that the information he sought was not otherwise procurable by exercise of due diligence. Nixon, 418 U.S. at 699. On these facts, we find no abuse of the district court‘s discretion in granting the Government‘s motion to quash.
Nor do we find abuse of the district court‘s discretion in its denial of White‘s motion to withdraw his guilty plea. See United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.2000). A defendant bears the burden of demonstrating that a “fair and just reason” supports his request to withdraw his plea. United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991).
White received an adequate
Accordingly, we affirm White‘s 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.