United States v. Willie Collon West , 350 F. App'x 387 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12094 ELEVENTH CIRCUIT
OCTOBER 27, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00124-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE COLLON WEST,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 27, 2009)
Before EDMONDSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Willie Collon West appeals his conviction and sentence of 168 months of
imprisonment for conspiracy to possess with intent to distribute at least 5 grams of
cocaine base. 21 U.S.C. § 846. West challenges the validity of his guilty plea and
the constitutionality and reasonableness of his sentence. We affirm.
West entered an agreement with the government to plead guilty to
conspiracy to distribute cocaine base in exchange for the dismissal of a second
drug charge. The plea agreement provided that West waived his right to appeal his
sentence, subject to three exceptions: the sentence exceeded the “applicable
guidelines range as determined by the Court”; the sentence exceeded the maximum
statutory penalty; or the sentence violated the Eighth Amendment. The agreement
stated as a factual basis that West sold 34.6 grams of cocaine base to a federal
agent for $1200.
At a change of plea hearing before a magistrate judge, West verified that he
had read and signed the plea agreement and he had read and agreed with all the
statements in the factual basis. The magistrate judge explained in detail West’s
right to appeal his sentence and the consequences of his decision to waive that
right, and West verified that he had agreed, subject to the three exceptions, to
waive his right to appeal his sentence. West testified that he had sold a federal
agent “34 grams” of cocaine base and received $1200 in payment. The district
court later accepted West’s plea of guilty.
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The presentence investigation report identified West as a career offender and
listed a base offense level of 34. After a three-point reduction for acceptance of
responsibility, the report provided a total offense level of 31. With a criminal
history of VI, the report provided a sentencing range between 188 and 235 months
of imprisonment.
West objected to an enhancement as a career offender, but the district court
overruled the objection. The district court found that West’s criminal history
category overrepresented his criminal record and reduced his category to V, which
resulted in a sentencing range between 168 and 210 months of imprisonment under
the Sentencing Guidelines. The district court sentenced West at the low end of that
range.
West failed to present any of his arguments to the district court, so our
review is for plain error. On review for plain error, we may correct only an error
that is plain and affects substantial rights. United States v. Gonzalez, 550 F.3d
1319, 1322 (11th Cir. 2008). An error is plain if it is “obvious or clear under
current law.” United States v. Williams, 469 F.3d 963, 966 (11th Cir. 2006).
Because West pleaded guilty, he “must show a reasonable probability that, but for
the error, he would not have entered the plea.” United States v. Dominguez
Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004).
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West argues that his plea of guilty was invalid because he lacked personal
knowledge about one sentence in the factual basis that recounted a single drug
transaction by his codefendant, but this argument is absurd. “Before entering
judgment . . . [against West], the [district] court [had to] determine that there [was]
a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). West confirmed all the
facts material to his conviction when he admitted colluding with a codefendant to
sell a federal agent 34 grams of cocaine base. See United States v. Johnson, 89
F.3d 778, 784 (11th Cir. 1996). The district court did not plainly err by accepting
the factual basis for West’s guilty plea.
West next argues that his sentence is unreasonable, but this argument is
barred by the appeal waiver in his plea agreement. The magistrate judge explained
the waiver to West during the change of plea hearing, and West acknowledged that
he had agreed to waive his right to appeal his sentence. See United States v.
Bushert, 997 F.2d 1343, 1350–52 (11th Cir. 1993). West fails to explain how the
district court plainly erred in finding that West’s appeal waiver was knowing and
voluntary.
West’s appeal waiver does not bar his argument that his sentence violates
the Eighth Amendment, but his argument nevertheless fails. West fails to cite any
caselaw to support his argument that his sentence of 168 months of imprisonment
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is grossly disproportionate to his offense. See United States v. Raad, 406 F.3d
1322, 1323–24 (11th Cir. 2005). The district court did not plainly err by
sentencing West at the low end of the guideline range.
West’s conviction and sentence are AFFIRMED.
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