                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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).



                                                     5
           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



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