UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 98-4861

STEPHEN MICHAEL BREEDLOVE,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4207

HILDA I. C. MICHAELS,

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Chief District Judge.

(CR-96-154-MU)

Submitted: October 26, 2000

Decided: April 20, 2001

Before MOTZ and TRAXLER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam

opinion. 
COUNSEL

Paul Pooley, Durham, North Carolina; Randolph M. Lee, Charlotte,

North Carolina, for Appellants. Mark T. Calloway, United States

Attorney, Brian Lee Whisler, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Stephen Michael Breedlove and Hilda I.C. Michaels pled guilty to

conspiracy to possess Dilaudid with intent to distribute, in violation

of 21 U.S.C.A. § 846 (West 1999). On appeal, Breedlove challenges

the district court’s denial of his motion to withdraw his guilty plea,

and Michaels contends that the district court misperceived its authority to depart based on a combination of factors. We affirm

Breedlove’s conviction and dismiss Michaels’ appeal. 

I.

Breedlove argues that the district court erred in denying his motion

to withdraw his guilty plea. He contends that he was not required to

articulate a fair and just reason for withdrawal because he moved to

withdraw his plea after the magistrate judge conducted his plea hearing, in accordance with Fed. R. Crim. P. 11, but before the district

court accepted his plea. Because Breedlove did not rely on this argument below, we review the district court’s denial of his motion to

withdraw for plain error. United States v. Bowens, 224 F.3d 302, 314

(4th Cir. 2000) (providing standard). 

At the conclusion of the Rule 11 hearing, the magistrate judge recommended accepting Breedlove’s plea but deferred acceptance of the

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plea and plea agreement to the district court. In United States v. Hyde,

520 U.S. 670 (1997), the Supreme Court held that, when the defendant sought to withdraw his guilty plea after the district court had

accepted the plea but before the district court had accepted the plea

agreement, the defendant could not withdraw his plea unless he had

shown a "fair and just reason" for doing so. 520 U.S. at 673-74; see

United States v. Grant, 117 F.3d 788, 790-92 (5th Cir. 1997) (holding

that defendant must show fair and just reason for withdrawal of plea

where district court conducts Rule 11 colloquy but defers acceptance

of plea and plea agreement until it reviews presentence report);

United States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992) (finding

that once guilty plea is accepted by court, regardless of whether plea

agreement is accepted, defendant is bound by his choice and may

withdraw plea only by showing either fair and just reason or by withdrawing after rejection of plea agreement). 

Given that Breedlove consented to have the magistrate judge preside over his Rule 11 hearing and tendered his plea at that time, the

magistrate judge’s recommendation to accept his plea is binding. See

Hyde, 520 U.S. at 677 ("Were withdrawal automatic in every case

where the defendant decided to alter his tactics and present his theory

of the case to the jury, the guilty plea would become a mere gesture,

a temporary and meaningless formality reversible at the defendant’s

whim.") (internal quotation marks and citations omitted); United

States v. Dees, 125 F.3d 261, 266-69 (5th Cir. 1997) (collecting cases

holding that magistrate judge’s taking of guilty plea does not violate

Article III guarantees). We therefore find no plain error in requiring

Breedlove to articulate a "fair and just reason" to justify the withdrawal of his plea. We also agree with the district court’s analysis of

the factors enunciated in United States v. Moore, 931 F.2d 245, 248

(4th Cir. 1991), and its ultimate determination that Breedlove did not

present a "fair and just reason" to warrant the withdrawal of his guilty

plea. See United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.

2000) (stating standard of review). 

II.

Hilda I.C. Michaels contends that the district court erred in finding

that it did not have the authority to depart based on a "combination

of factors" theory. Our review of the record leads us to conclude that

UNITED STATES v. BREEDLOVE 3
the district court recognized its authority to depart but chose not to

exercise its discretion to do so. When the court recognizes its authority to depart but chooses not to, the decision is not reviewable on

appeal. See United States v. Edwards 188 F.3d 230, 238-39 (4th Cir.

1999), cert. denied, 120 S. Ct. 968 (2000); United States v. Bayerle,

898 F.2d 28, 31 (4th Cir. 1990). We therefore dismiss Michaels’

appeal. 

III.

For the reasons stated, we affirm Breedlove’s conviction and dismiss Michaels’ appeal.* 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 IN PART AND DISMISSED IN PART

*We have considered the effect of Apprendi v. New Jersey, 530 U.S.

466 (2000), and find that, because Breedlove’s and Michaels’ sentences

of imprisonment and terms of supervised release do not exceed the statutory maximums set out in 21 U.S.C.A. § 841(b)(1)(C) (West 1999), their

sentences are permissible under Apprendi. 

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