UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4037

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONNIE WELCH,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. John T. Copenhaver, Jr.,

District Judge. (2:06-cr-00191-1)

Submitted: July 9, 2008 Decided: August 19, 2008

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Travis E. Ellison, III, JOHN R. MITCHELL, L.C., Charleston, West

Virginia, for Appellant. Charles T. Miller, United States

Attorney, Monica K. Schwartz, Assistant United States Attorney,

Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Donnie Welch pled guilty pursuant to a written plea

agreement to possession of an unregistered bomb, making false

statements to federal agents, possession of a firearm by an addict,

and committing perjury during grand jury proceedings, in violation

of 18 U.S.C. §§ 922(g)(3); 1001; 1623; 26 U.S.C. § 5861(d) (2000).

Welch was sentenced to a total of 262 months’ imprisonment.

Finding no error, we affirm.

On appeal, Welch contends the district court erred in

denying his motion to withdraw his guilty plea. A defendant may

withdraw a guilty plea prior to sentencing if he “can show a fair

and just reason for requesting the withdrawal.” Fed. R. Crim. P.

11(d)(2)(B). In determining whether a defendant will be permitted

to withdraw his guilty plea, a district court should consider: 

(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.

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). We

review a district court’s denial of a motion to withdraw a guilty

plea for abuse of discretion. United States v. Ubakanma, 215 F.3d

421, 424 (4th Cir. 2000). Further, we closely scrutinize the Rule

11 colloquy and attach a strong presumption that the plea is final
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and binding if the Rule 11 hearing is adequate. United States v.

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).

As noted by the district court, and conceded by Welch on

appeal, the motion to withdraw the guilty plea was not predicated

on an assertion of legal innocence. Instead, Welch argues, as he

did in the district court, that he would not have pled guilty if he

had known that he was subject to a six-level enhancement under U.S.

Sentencing Guidelines Manual § 3A1.2(b) (2006). However, during

the properly conducted Rule 11 hearing, Welch acknowledged the plea

agreement provision explaining that neither the court nor the

probation office was bound by the parties’ estimate of the

Guidelines calculation. The court explained in detail the

procedure for determining the advisory guideline range and stated

that the applicable range would “not become clear” until the

presentence report was finalized, including the resolution of any

objections thereto. Likewise, the court informed Welch that he was

subject to a total statutory maximum of thirty years’ confinement.

Considering all of the Moore factors, and Welch’s failure to

overcome the presumption that his plea is final and binding, we

conclude the district court did not abuse its discretion in denying

Welch’s motion to withdraw his guilty plea.

Welch also contends that the district court erred in its

application of USSG § 3A1.2(b). The Government asserts that Welch

is foreclosed from raising this issue based on the appellate waiver
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provision in the plea agreement. According to the terms of the

agreement, Welch waived his right to appeal the reasonableness of

any sentence within the applicable advisory guideline range.

Welch, however, retained the right to appeal a properly preserved

objection to the district court’s Guidelines calculation. Because

Welch challenges his sentence based on a properly preserved

objection to the court’s application of § 3A1.2(b), we conclude the

appeal waiver is inapplicable.

When reviewing the district court’s application of the

Sentencing Guidelines, we review findings of fact for clear error

and questions of law de novo. United States v. Green, 436 F.3d

449, 456 (4th Cir. 2006). Welch does not dispute that his intended

victim was a law enforcement officer and that § 3A1.2(b) is

applicable. Rather, Welch argues that it would be unfair to apply

the six-level enhancement in this case because, due to an

oversight, the other individual involved in the crime was not

subjected to the enhancement. Welch reasons that application of

the enhancement would result in an unwarranted disparate sentence

as contemplated by 18 U.S.C. § 3553(a)(6) (2000).

While it appears that the enhancement was not applied in

the related case, such error does not justify affording Welch a

windfall. See United States v. Ellis, 975 F.2d 1061, 1066 n.2 (4th

Cir. 1992). Moreover, we have previously rejected a similar

argument, stating that “‘the kind of “disparity” with which
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§ 3553(a)(6) is concerned is an unjustified difference across

judges (or districts) rather than among defendants to a single

case.’” United States v. Pyles, 482 F.3d 282, 290 (4th Cir. 2007)

(quoting United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.

2006)), vacated on other grounds, 128 S. Ct. 865 (2008) (vacating

for consideration in light of Gall v. United States, 128 S. Ct. 586

(2007)). Welch has failed to establish that his sentence is

disparate among the broader scope of similarly situated defendants.

Consequently, we conclude the district court did not err in

applying USSG § 3A1.2(b).

Accordingly, we affirm the judgment of the district

court. 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