UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4053

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

OCTAVIAN DARNELL GODETTE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Terrence W. Boyle, 

District Judge. (4:13-cr-00014-BO-1)

Submitted: November 25, 2014 Decided: January 14, 2015

Before NIEMEYER, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Rudolph A. Ashton, III, MCCOTTER ASHTON, P.A., New Bern, North 

Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Octavian Darnell Godette pled guilty, pursuant to a 

plea agreement, to possession of a firearm by a convicted felon, 

in violation of 18 U.S.C. § 922(g)(1) (2012). On appeal,

Godette raises several challenges to his conviction and 262-

month, within-Guidelines sentence. Finding no error, we affirm.

I.

Godette first argues that the district court erred by 

denying his motion to withdraw his guilty plea and by failing to 

adequately inquire into the grounds alleged in the motion. We 

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

guilty plea for abuse of discretion. United States v. 

Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). A defendant 

seeking to withdraw his guilty plea bears “the burden of showing

a fair and just reason for withdrawal” of the plea. United 

States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). 

We have developed a nonexclusive list of six factors 

for the district court to consider when determining whether the 

defendant has met his burden. United States v. Moore, 931 F.2d 

245, 248 (4th Cir. 1991). While all of the Moore factors should 

be considered, “[t]he most important consideration in resolving 

a motion to withdraw a guilty plea is an evaluation of the [Fed. 

R. Crim. P.] 11 colloquy.” United States v. Bowman, 348 F.3d 

408, 414 (4th Cir. 2003). “[A] properly conducted Rule 11 
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guilty plea colloquy leaves a defendant with a very limited 

basis upon which to have his plea withdrawn,” id., and “raise[s] 

a strong presumption that the plea is final and binding.” 

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

banc). 

Having thoroughly reviewed the record, we conclude 

that the district court did not abuse its discretion by denying 

Godette’s motion to withdraw his guilty plea. Moreover, because 

Godette did not present “a fair and just reason for withdrawal 

of the plea,” Moore, 931 F.2d at 248 (internal quotation marks 

omitted), the district court did not err by failing to further 

explore Godette’s conclusory allegations at the hearing.

II.

Next, Godette contends that the district court erred 

by applying the attempted murder cross-reference under U.S. 

Sentencing Guidelines Manual (“USSG”) § 2A2.1(a)(1) (2012) 

instead of the attempted robbery cross-reference under USSG 

§ 2B3.1, as his intent was to rob, not murder the victim. When 

evaluating Guidelines calculations, including the application of 

a cross-reference, we review the district court’s legal 

conclusions de novo and its factual findings for clear error. 

United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014).

Section 2A2.1 provides for a base offense level of 

thirty-three “if the object of the offense would have 
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constituted first degree murder,” as defined in 18 U.S.C. § 1111 

(2012). USSG § 2A2.1(a)(1) & cmt. n.1. Section 1111, in turn, 

defines first degree murder as “the unlawful killing of a human

being with malice aforethought” — that is, “[e]very murder 

perpetrated by . . . willful, deliberate, malicious, and 

premeditated killing; or committed in the perpetration of, or 

attempt to perpetrate, any . . . robbery.” 18 U.S.C. § 1111(a). 

Thus, according to the statutory definition, a court may find 

that the defendant committed first degree murder if the killing 

was premeditated or committed during the course of a felony, 

such as robbery. We conclude that firing shots at the victim in 

his home at a level that could have killed him had Godette not 

missed constitutes attempted first degree murder under any 

definition.

III.

Next, Godette challenges the reasonableness of his 

262-month sentence. He first contends that the district court 

did not provide a sufficient explanation for its chosen 

sentence. We review a sentence for procedural and substantive 

reasonableness under a deferential abuse of discretion standard. 

Gall v. United States, 552 U.S. 38, 51 (2007). In determining 

procedural reasonableness, we consider, among other factors, 

whether the district court sufficiently explained the selected 
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sentence and adequately considered the 18 U.S.C. § 3553(a) 

(2012) factors. Id.

In explaining its sentence, the district court is not 

required to “robotically tick through § 3553(a)’s every 

subsection, particularly when imposing a within-Guidelines 

sentence.” United States v. Powell, 650 F.3d 388, 395 (4th Cir. 

2011) (internal quotation marks omitted). However, “[w]here the 

defendant or prosecutor presents nonfrivolous reasons for 

imposing a different sentence than that set forth in the 

advisory Guidelines, a district judge should address the party’s 

arguments and explain why he has rejected those arguments.” 

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) 

(internal quotation marks omitted). 

It may be possible, however, for an appellate court to 

evaluate from “[t]he context surrounding a district court’s 

explanation . . . both whether the court considered the 

§ 3553(a) factors and whether it did so properly.” United 

States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006). 

Where the record clearly reveals that the court considered the 

parties’ arguments and relevant evidence and the case is 

“conceptually simple,” the law does not require a judge “to 

write more extensively.” Rita v. United States, 551 U.S. 338, 

359 (2007).
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Although Godette correctly notes that the district 

court did not explicitly state its reasons for the 262-month 

sentence, the record clearly reveals the court’s reasons for 

imposing a sentence at the top of the advisory Guidelines range: 

the sentence would protect the public and might deter Godette 

from engaging in further criminal conduct. 

Godette also argues that his sentence is substantively 

unreasonable because the district court should have granted his 

motion for a downward variance. We consider the substantive 

reasonableness of the sentence by “tak[ing] into account the 

totality of the circumstances.” Gall, 552 U.S. at 51. “Any 

sentence that is within or below a properly calculated 

Guidelines range is presumptively [substantively] reasonable. 

Such a presumption can only be rebutted by showing that the 

sentence is unreasonable when measured against the 18 U.S.C. 

§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 

306 (4th Cir.) (citations omitted), cert. denied, 135 S. Ct. 421 

(2014).

We conclude that Godette has not met his burden of 

demonstrating that his within-Guidelines sentence is 

substantively unreasonable. In light of the significant danger 

Godette poses to society and his demonstrated lack of respect 

for the law, a sentence at the top of the advisory Guidelines 

range was more than justified.
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IV.

Finally, we conclude that Godette waived his challenge 

to the armed career criminal enhancement when counsel conceded 

in the district court that the argument was without merit. See

United States v. Olano, 507 U.S. 725, 733 (1993) (“Waiver is the 

intentional relinquishment or abandonment of a known right.”

(internal quotation marks omitted)); United States v. West, 550 

F.3d 952, 958 (10th Cir. 2008) (finding that defendant waived 

challenge to prior conviction as predicate offense for Armed 

Career Criminal Act purposes by affirmatively conceding issue in 

district court), partially overruled on other grounds as 

recognized by United States v. Smith, 652 F.3d 1244, 1246 (10th 

Cir. 2011). Accordingly, we decline to consider Godette’s 

challenge to his armed career criminal designation. See United 

States v. Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When 

a claim of . . . error has been waived, it is not reviewable on 

appeal.”).

V.

We affirm the district court’s judgment. We dispense 

with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED