United States v. Lestrick , 82 F. App'x 4 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 28 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4011
(D. Utah)
ANTOINE LESTRICK, (D. Ct. No. 02-CR-113-ALL)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Antoine Lestrick appeals from his conviction and sentence, invoking our
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). His counsel on
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
moved for leave to withdraw. 1 For the reasons set forth below, we grant
counsel’s motion to withdraw, dismiss the appeal in part and affirm the district
court with respect to the issue that survived dismissal.
II. Background
On March 6, 2002, Lestrick was indicted on a single count of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On May 22,
2002, present counsel was appointed for Lestrick. Counsel demanded discovery
from the government, specifically requesting production of exculpatory material.
Later, Lestrick negotiated a plea agreement in which he waived his right to appeal
from his sentence unless, inter alia, the sentence was imposed in violation of the
law. Pursuant to that agreement, Lestrick entered an unconditional plea of guilty
to the charged offense on October 7, 2002.
Lestrick was provided a copy of the presentence report recommending the
base offense level of twenty-four be increased two levels pursuant to United
States Sentencing Guidelines (USSG) § 2K2.1(b)(4) because the firearm he
1
If counsel determines an appeal would “be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw." Anders, 386 U.S. at 744. Counsel must also submit to
the court a brief addressing anything in the record that arguably supports the
appeal, and the defendant must be given the opportunity to raise any additional
points. Id.
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illegally possessed was stolen. The government also provided Lestrick with
copies of police reports verifying that the illegally possessed firearm was also
stolen. Appellate Br. at 10-11. On December 2, 2002, he filed a written
objection to the recommendation. The district court imposed the recommended
enhancement. On January 6, 2002, Lestrick was sentenced to eighty-four months
imprisonment. This appeal followed.
In Appellant’s brief, counsel candidly admits to an absence of legal support
for the arguments advanced. Nonetheless, as Anders requires, several possible
issues are identified. Lestrick claims (1) his guilty plea was not knowing and
voluntary because the government withheld certain exculpatory evidence, (2) the
district court erred in denying his suppression motion, and (3) he suffered from
ineffective assistance of counsel.
II. Discussion
Lestrick asked to be provided with all exculpatory material, but the
government did not disclose police reports verifying that the firearm was stolen
until after he pled guilty. That untimely disclosure, he argues, is a violation of
Brady v. Maryland, 373 U.S. 83 (1963), and, accordingly, his guilty plea was not
knowingly and intelligently made. 2 Lestrick did not present this argument to the
2
Lestrick also claims the district court erred in refusing to grant a requested
downward departure, but makes no argument in support of that claim. Instead he
argues that the trigger fact for sentencing enhancement, the stolen firearm, should
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district court and did not attempt to withdraw his guilty plea.
We do not entertain appeals when a defendant has waived the right to
appeal. United States v. Rubio, 231 F.3d 709, 711 (10th Cir.2000). But, Lestrick
reserved the right to appeal from a sentence imposed in violation of law and we
have recognized that “under certain limited circumstances, the prosecution’s
violation of Brady can render a defendant’s plea involuntary.” United States v.
Wright, 43 F.3d 491, 496 (10th Cir. 1994). Accordingly, we consider the Brady
argument. Because Lestrick failed to bring the alleged Brady violation before the
district court, we review for plain error. United States v. Blandin, 784 F.2d 1048,
1051 (10th Cir. 1986).
To establish a Brady violation, a defendant must demonstrate "(1) the
prosecutor suppressed evidence; (2) the evidence was favorable to the defendant
as exculpatory or impeachment evidence; and (3) the evidence was material."
Knighton v. Mullin, 293 F.3d 1165, 1172 (10th Cir. 2002), cert denied, 123 S. Ct.
1588 (2003) (quoting Gonzales v. McKune, 247 F.3d 1066, 1075 (10th Cir. 2001))
(emphasis added). He doesn’t explain and we are unable to divine how the fact
that the firearm was stolen (in addition to being illegally possessed) is, in any
have been alleged in the indictment and proven at trial, citing Apprendi v. New
Jersey, 530 U.S. 466, 476 (2000). He suggests our cases to the contrary should be
overruled, but does not offer cogent argument. We disregard such claims. United
States v. Metzger, 233 F.3d 1226, 1229 (10th Cir. 2000) (citing Phillips v.
Calhoun, 956 F.3d 949, 953 (10th Cir. 1992))
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way, exculpatory. There was no Brady violation. That ends the inquiry since
Lestrick offers no other reason why his plea was other than knowing and
intelligent.
Lestrick also argues the district court erred in denying a motion to
suppress. But a voluntary, knowing, and unconditional plea of guilty waives all
non-jurisdictional defenses and thus precludes appellate review of the denial of
that motion. United States v. Davis, 900 F.2d 1524, 1525-26 (10th Cir. 1990).
Other than the Brady argument, discussed supra, Lestrick does not claim his
unconditional plea was not knowingly and voluntarily entered.
Finally, Lestrick claims (restated for clarity): 1) his counsel failed to
diligently pursue discovery and therefore did not know the firearm was stolen
before he entered his guilty plea, 2) had counsel known the firearm was stolen
and appreciated the attendant risk of a sentencing enhancement, the potential
consequences could have been evaluated before the guilty plea was entered, and
3) he was thereby denied effective assistance of counsel. Evaluation of this
argument will require record development in the district court. “[I]neffective
assistance of counsel claims should be brought in collateral proceedings, not on
direct appeal. Such claims brought on direct appeal are presumptively
dismissible, and virtually all will be dismissed." United States v. Galloway, 56
F.3d 1239, 1240 (10th Cir. 1995). We therefore decline to review the ineffective
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assistance of counsel claim.
Accordingly, the judgment and sentence of the district court are
AFFIRMED with respect to his allegation the sentence was illegally imposed
because of a Brady violation. The appeal is DISMISSED with respect to the
remaining issues. Counsel’s request to withdraw is GRANTED.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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