United States v. Michael Kostenko

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 8, 2018
• Docket: 17-4552
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4552

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL KOSTENKO, D.O.,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:16-cr-00221-1)

Submitted: July 26, 2018 Decided: August 8, 2018

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David O. Schles, LAW OFFICE OF DAVID O. SCHLES, Charleston, West Virginia, for Appellant. Michael B. Stuart, United States Attorney, Charleston, West Virginia, Miller Bushong, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Kostenko, a doctor of osteopathic medicine, appeals his conviction and

resulting 240-month sentence imposed following his guilty plea to distributing

oxycodone not for legitimate medical purposes in the usual course of professional

medical practice and beyond the bounds of medical practice, in violation of 21 U.S.C.

§ 841(a)(1) (2012). On appeal, Kostenko argues that his guilty plea was entered

involuntarily, and that, consequently, the district court erred in accepting his plea. For

the reasons that follow, we affirm.

Before accepting a guilty plea, the trial court must ensure that the defendant’s

“plea is voluntary, i.e., is not the result of force, threats, or promises made by the

government that are not part of the plea agreement.” United States v. DeFusco, 949 F.2d

114, 119 (4th Cir. 1991); see Fed. R. Crim. P. 11(b)(2). The decision to plead guilty

“must reflect a voluntary and intelligent choice among the alternative courses of action

open to the defendant.” United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010)

(internal quotation marks omitted). A defendant seeking to retract statements made

during a Rule 11 colloquy “bears a heavy burden,” United States v. Bowman, 348 F.3d

408, 417 (4th Cir. 2003), because, absent “extraordinary circumstances, the truth of

sworn statements made during a Rule 11 colloquy is conclusively established,” United

States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005). Because Kostenko did not

move to withdraw his guilty plea or otherwise preserve any error in the plea proceedings,

we review only for plain error. See United States v. Massenburg, 564 F.3d 337, 342 (4th

Cir. 2009).

2 Kostenko, who entered his guilty plea on the second day of trial, claims that he

pleaded guilty only because he believed that his trial attorneys were not providing

adequate representation. While Kostenko clearly indicated his concerns with counsel’s

trial preparation, he nevertheless affirmed, during his Rule 11 colloquy, that his decision

to plead guilty was made voluntarily and of his own free will, without any coercion,

pressure, or intimidation. Critically, such declarations “carry a strong presumption of

verity.” Lemaster, 403 F.3d at 221 (internal quotation marks omitted). Although, in

some extraordinary circumstances, ineffective assistance of counsel can render a guilty

plea involuntary, see, e.g., United States v. White, 366 F.3d 291, 297-98 (4th Cir. 2004),

here, Kostenko contends not that his counsel’s performance was actually deficient, but

only that he perceived it to be. Based on our review of the record, we conclude that

Kostenko has not overcome the presumption that the statements he made during the Rule

11 hearing were truthful.

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 this court and argument would not aid the decisional process.

AFFIRMED