United States v. Fitzgerald Lamar Wright , 154 F. App'x 790 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 15, 2005
No. 05-11111 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00113-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FITZGERALD LAMAR WRIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 15, 2005)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Fitzgerald Lamar Wright appeals his conviction for conspiracy to possess
with intent to distribute cocaine in violation of 21 U.S.C. § 846. On appeal,
Wright argues that he should be permitted to withdraw his guilty plea because of a
Rule 11 violation and because the government breached the plea agreement by
failing to move for a one-point acceptance of responsibility reduction at
sentencing. For the reasons stated more fully below, we affirm.
Proceedings against Wright began when an FBI investigation led to a
criminal complaint alleging that Wright had admitted selling drugs to someone
known as James Williams on four or five occasions while Wright was on federal
supervised release. An indictment later charged Wright with one count of
conspiracy to possess with intent to distribute cocaine and one count of possession
with intent to distribute cocaine, violations of 21 U.S.C. §§ 846 and 841(a)(1)(B),
respectively. On the first day of jury selection, Wright agreed to a “factual
resume,” admitted to the conspiracy charge in the indictment, and signed a plea
agreement. The agreed-upon facts stated that Wright, on three occasions, sold
cocaine to Williams and approximately one kilogram of cocaine was seized from a
location associated with Wright. Wright admitted that the government would be
able to prove his involvement with one and a half kilograms of cocaine, and the
resume was signed by both Wright and his attorney.
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The plea agreement indicated that Wright had been informed of the elements
of the charges, understood the rights he was waiving, believed his attorney had
represented him well, and was freely and voluntarily pleading guilty because he
was guilty. The plea agreement stated that a supervised release term of five years
would follow any term of imprisonment. The agreement also provided that, if “the
Court finds that Wright is entitled to a reduction for acceptance of responsibility,”
the government would move for an additional one-point reduction under U.S.S.G.
§ 3E1.1(b). Finally, the agreement contained an appeal waiver by which Wright
waived his right to appeal “any sentence imposed.” Wright and his counsel also
signed the agreement.
At the plea hearing, Wright indicated that he had an adequate opportunity to
meet with his attorney to talk about the case, the indictment, the charge, the
evidence, and the plea agreement. He indicated that he was satisfied with his
attorney’s advice and that he had reviewed and discussed the plea agreement with
his attorney, understood and agreed with what the plea agreement said, and signed
it. Wright then indicated that he understood the consequences of his guilty plea,
and the court informed Wright of the statutory maximum and minimum sentences
and that Wright “could be placed on supervised release for up to five years,” which
Wright understood. Wright understood that he did not have to plead guilty, and the
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court told him that, even at that time, Wright could request that his attorney select a
jury and require the government to prove its case beyond a reasonable doubt. The
court then informed Wright what the government would have to prove, which
Wright understood. Finally, Wright stated that he had reviewed with his attorney
the “factual resume” attached to his plea agreement, and he agreed that the facts
set forth in it were true. The district court found that Wright was entering his plea
knowingly and voluntarily and adjudged him guilty. No objections were made.
Nearly two months after pleading guilty, Wright filed a pro se “Request of
Defendant,” which was really a letter to the district court. In it, Wright stated that
he had “questions” concerning his case and believed that he “was not represented
rightfully.” Wright explained that he had just received a copy of his plea
agreement and did not know what had happened between him, his attorney, and the
government because things happened so fast that he did not have a chance to
review the plea agreement or factual resume. He felt as though he had been forced
to make a “life decision in 20 seconds” and did not know he was pleading guilty to
one and a half kilograms of cocaine, could not plead guilty to that amount, and did
not know how he was being charged with conspiracy for what started out as a state
charge of attempt to distribute. Wright did not understand how he could be
charged with a conspiracy involving Williams when Williams was not charged
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with the same conspiracy.1
Wright continued, stating that he had wanted his attorney to hold an
evidentiary hearing regarding Williams’s use as an informant and credibility, as
well as to suppress statements Wright made to police when he was arrested.
Finally, Wright believed that the government’s attorney was vindictive toward
him, as the same attorney had prosecuted him on a previous case and failed to
follow through on a promised Rule 35 motion. He requested to have another
prosecutor assigned to the case, a new lawyer to represent him, and a discussion
with the court about his plea agreement.
The district court struck the letter from the record, finding that Wright,
despite being represented by counsel, improperly had filed a pleading or
communication with the court. It further noted that if Wright was dissatisfied with
his attorney, he could ask his attorney to withdraw and, if Wright demonstrated his
indigence, new counsel could be appointed on his behalf. Shortly thereafter,
Wright’s counsel filed a motion to withdraw as counsel and a new attorney filed
his notice of appearance on Wright’s behalf. At no point did Wright file a motion
to withdraw his plea.
1
The record reflects that James Williams was charged by a grand jury in the federal
district court in Mobile, Alabama, for conspiracy to possess with intent to distribute cocaine.
Williams pled guilty to the charges and was released on bond pending sentencing.
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A presentence investigation report (PSI) was then completed, and among the
calculations relevant to Wright’s appeal, it found that Wright’s base offense level
was 26, but that he was only entitled to a two-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a) because his guilty plea was not
timely. His criminal history category was found to be III, which, at offense level
24, would have resulted in a guidelines range of 63 to 78 months’ imprisonment.
However, pursuant to 21 U.S.C. § 841(b)(1)(B), the statutory minimum term of
imprisonment was 120 months, making the guidelines sentence 120 months.
Finally, the PSI stated that, pursuant to the enhanced penalty provisions of 21
U.S.C. § 841(b)(1)(B), a mandatory supervised release period of eight years was
required.
Wright filed one objection to the PSI, arguing that he was entitled to an
additional one-point reduction for acceptance of responsibility because (1) the
delay in entering a plea was due, in part, to his inability to discuss certain legal
issues with regard to his plea with his previous attorney, and (2) since his arrest, he
had provided truthful information to the government and fully cooperated with the
government’s investigation of his misconduct. Wright “[adopted] the balance of
the Pre-sentence Report, and [had] no objection to the balance of said report.”
Prior to sentencing, the government filed a motion for a downward departure
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pursuant to U.S.S.G. § 5K1.1, as Wright had provided substantial assistance in the
investigation and prosecution of others.
On February 10, 2005, the district court held a combined supervised release
revocation and sentencing hearing, and Wright waived his right to a separate
revocation hearing, admitting that his guilt for the present offense was a violation
of his supervised release for which the guidelines recommended a sentence of 12-
18 months. As to sentencing, Wright stated that he had reviewed the PSI with his
attorney, and the court proceeded to address Wright’s sole objection regarding the
additional one-point reduction for acceptance of responsibility. The court
questioned Wright as to whether the one-point reduction would make any
difference at all, as the statutory minimum sentence was 120 months’
imprisonment, and the one-point reduction would have no effect on the statutory
minimum. Wright conceded that the court was correct and he had no other
objections to the PSI. The court thereby adopted the findings and calculations of
the PSI and determined that the guidelines would require a 120-month sentence.
Thus, the court adopted the PSI’s factual finding that a one-point reduction was not
warranted in this case.
Next, the court addressed the government’s motion for a downward
departure “under the statute and under the advisory guidelines.” The court heard
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evidence from both sides regarding Wright’s assistance, including testimony from
a state homicide detective, and ultimately concluded that Wright’s assistance in the
investigation of another case was more substantial than the government had made
it out to be. The government stated that it was recommending “ten percent off the
hundred and twenty months” (12 months) and it would not oppose running
Wright’s sentence for the supervised release revocation concurrently. Wright
requested fifty percent off of the statutory minimum, arguing that it would put him
closer to the calculated guidelines range. Wright, addressing the court, further
indicated that he was hopeful that the departure would be applied from the low-end
guidelines calculation as opposed to the statutory minimum.
The district court found that Wright was asking for a little more
consideration than it believed was appropriate and explained that:
[T]he law requires that people who cannot learn their lesson the first
time must learn it the second time. That is what the hope is of this
Court, that another sentence is going to teach you, finally, to quit
living this sort of lifestyle. . . . As good as you’ve done in some
respects you have done bad in others. . . . [T]his is all going to come
together here in a minute in a sentence that I’m going to fashon [sic]
that I think meets all the sentencing objectives that the law requires
that be considered by me . . . one of which is to protect the public
from further crimes . . . and afford an adequate deterrence to criminal
conduct. . . . And you have failed in the previous sentence to be
deterred and to have the public protected.
The court then sentenced Wright to 16 months’ imprisonment for the
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supervised release revocation. As to the instant sentence, the court granted the
government’s motion for a downward departure from the statutory minimum
sentence and imposed a 78-month sentence (42 months below the statutory
minimum) to run concurrently with the 16-month supervised release sentence. The
court stated that it “imposed the sentence to meet the sentencing objective of
punishment, deterrence and incapacitation.” The remaining count in the indictment
was dismissed and no objections were made to either the court’s findings or
sentence.
On appeal, Wright requests that his guilty plea be set aside pursuant to
Fed.R.Crim.P. 11(e). First, Wright argues that he moved to withdraw his plea
below and asserted to the district court that his guilty plea was not entered
knowingly and voluntarily because he did not understand the charge of conspiracy,
have adequate time to review the plea agreement, or intend to plead guilty to 1.5
kilograms of cocaine. Second, he argues for the first time on appeal that both the
plea agreement and the district court incorrectly set forth the minimum mandatory
supervised release term, violating his substantial rights. Finally, Wright argues
that the government breached the plea agreement by failing to file a motion
authorizing the district court to reduce Wright’s guidelines range an additional one
point for acceptance of responsibility. Wright argues that this one point was
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necessary, notwithstanding the district court’s finding that it was trumped by the
statutory minimum, because the court intended to reward Wright for his substantial
assistance by sentencing him at the high end of guideline range, and that range was
incorrectly calculated. The government argues that Wright waived his right to
appeal.
A. Appeal Waiver
We first conclude that the government is attempting to expand Wright’s
sentence appeal waiver beyond what it properly covers. In United States v.
Copeland, 381 F.3d 1101 (11th Cir. 2004), the defendant entered a plea agreement
that contained a sentence-appeal waiver and filed an appeal alleging that the
government had breached the plea agreement. 381 F.3d at 1104. The government
argued that the sentence-appeal waiver covered the defendant’s right to appeal
anything connected with the case. Id. We rejected the government’s argument,
holding that the language of the waiver applied only to the sentence, not to the
defendant’s allegation that the government had breached the plea agreement. Id. at
1104-05.
The language of the appeal waiver in Wright’s agreement provides that
Wright “knowingly and voluntarily waives the right to appeal any sentence
imposed.” Here, Wright is not appealing his sentence, but is challenging his guilty
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plea and alleging a breach of the plea agreement. Accordingly, like in Copeland,
Wright has not waived his right to appeal the matters alleged in his brief. See
Copeland, 381 F.3d at 1105.
B. Motion to Withdraw Guilty Plea
Secondly, Wright mentions in his initial brief that the standard of review for
a district court’s denial of a motion to withdraw a guilty plea is for abuse of
discretion. While this is a true statement of law, the record does not reflect that
such a motion was ever filed with or considered by the district court.2 Wright is
arguing that his “Request of Defendant” constituted a motion to withdraw his
guilty plea, but he appears to be mistaken, as that letter does not specifically
request that he be permitted to withdraw his plea, but rather an opportunity to
discuss it.
Furthermore, to the extent that it was construed as a motion to withdraw his
guilty plea for being involuntary and unknowing, the district court did not abuse its
discretion by striking it because Wright was represented by counsel, not
proceeding pro se. See United States v. McCarty, 99 F.3d 383, 385 (11th Cir.
1996) (noting that we review the denial of a motion to withdraw a guilty plea for
abuse of discretion). As the district court correctly noted, “[t[his court has held
2
It is noted that the government, in its brief, refers to the “Request of Defendant” as a
motion to withdraw his plea. (Red Brief at 3, 8).
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repeatedly that an individual does not have a right to hybrid representation.” Cross
v. United States, 893 F.2d 1287, 1291-92 (11th Cir. 1990). Wright hired new
counsel, but did not subsequently attempt to withdraw his guilty plea.
Accordingly, there was no abuse of discretion.
Finally, we note that the district court struck the “Request of Defendant”
from the record. Wright does not argue that this was in error, and, therefore, we
will not consider the letter’s contents. Cf. LeCroy v. Sec’y, Fla. Dep’t Corrs., No.
04-13799, manuscript op. at 46-47 n.20 (11th Cir. Aug. 29, 2005) (“[t]he district
court struck [the defendant’s] earlier statement from the record and did not
consider it when denying the defendant’s § 2254 petition. On appeal, the
defendant has not challenged the district court’s evidentiary ruling, and thus we do
not consider this testimony.”).
C. Rule 11 Violation
Turning to the core issues presented in this appeal, Wright did not object to
any alleged Rule 11 violations, and, therefore, we will review only for plain error.
See United States v. Camacho, 233 F.3d 1308, 1313 (11th Cir. 2000). We will find
plain error where “(1) error occurred, and (2) the error is plain, (3) affects the
defendant's substantial rights, and (4) seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” United States v. Romano, 314 F.3d
121279, 1281 (11th Cir. 2002).
We have identified the three core concerns of Rule 11 as: “(1) ensuring that
the guilty plea is free from coercion; (2) ensuring that the defendant understands
the nature of the charges against [him]; and (3) ensuring that the defendant is aware
of the direct consequences of the guilty plea.” Camacho, 233 F.3d at 1314. “[A]
district court’s failure to satisfy any of the core objectives of Rule 11 affects a
defendant’s substantial rights and, thus, can constitute plain error.” Id.
In the instant case, Wright, with the assistance of counsel, signed a plea
agreement after indicating that he was pleading guilty freely and voluntarily. At
the plea colloquy, Wright confirmed to the district court that he had not been
coerced into entering the guilty plea, and that, after consulting with his attorney,
Wright had decided to enter the plea. Accordingly, there does not appear to be any
coercion involved in the plea.
Secondly, Wright appears to have understood the nature of the charges. The
plea agreement states that Wright had time to consult with his attorney, who
explained the facts of the case, the essential elements of the charge, the applicable
burden of proofs, and all applicable defenses. At the plea colloquy, the district
court explained to Wright, who had attended college, that the government had the
burden of proving beyond a reasonable doubt to a jury the charge in the indictment,
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that Wright and some other person had come together to form an understanding
that they would try to accomplish a common and unlawful plan, which in this case
was to possess with the intent to distribute approximately a kilogram of cocaine,
and that Wright was aware of the plan and willfully joined in it. Wright stated that
he understood. He further stated that he had agreed to the signed “Factual
Resume” setting out the facts of the case. The court asked Wright if he understood
everything that the court had been talking about, which Wright did. Accordingly,
it cannot be said that Wright did not understand the nature of the charges against
him.
As to the consequences of his plea, we conclude that there was error here
because the district court, as well as the plea agreement signed by Wright,
incorrectly stated that Wright would be subject to a supervised release term of five
years, while the penalizing statute, 21 U.S.C. § 841(a)(1)(B), clearly indicated that
the minimum supervised release term was eight years. See Fed.R.Crim.P.
11(b)(1)(H); 21 U.S.C. § 841(a)(1)(B). However, the PSI disclosed to Wright
before sentencing correctly stated that the supervised release term would be at least
eight years.
In United States v. Bejarano, 249 F.3d 1304 (11th Cir. 2001), the defendant
argued that the district court committed plain error by failing to inform him of the
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term of supervised release that would follow his term of imprisonment. Id. at
1306. There, the defendant’s plea agreement stated only that he would be subject
to a term of supervised release and later, at the plea colloquy, the district court did
not inform the defendant that there was a mandatory minimum supervised release
term of five years. Id. at 1304-06. However, the PSI correctly indicated that the
supervised release term, pursuant to statute, was five years, and the defendant
failed to object to that portion of the PSI. Id. at 1306. We held, under plain error
review, that the defendant’s “conduct indicates that his substantial rights were not
affected by the district court’s failure to inform him at his plea colloquy of the
specific term of supervised release required by statute.” Id. at 1307.
While the instant case differs in that, here, Wright was informed of an
incorrect term of supervised release, the PSI corrected that error and Wright did not
object to the PSI’s supervised release calculation. After the district court had
imposed Wright’s sentence, including the eight-year supervised release term,
Wright and his attorney were again given an opportunity to object and failed to do
so. Thus, like the defendant in Bejarano, we conclude that Wright had an
opportunity to object to the supervised release, failed to do so, and, therefore, by
his own conduct has indicated that his substantial rights were not affected by the
district court’s error. Cf. United States v. Carey, 884 F.2d 847, 849 (11th Cir.
15
1989) (holding, under plain error review, that although the district court erred by
failing to inform the defendant at his plea hearing of the term of supervised release,
the defendant failed to object to the court’s imposition, pursuant to the PSI, of a
term of supervised release, and, therefore, the defendant’s substantial rights were
not violated).
D. Breach of Plea Agreement
Lastly, Wright argues that the government breached the plea agreement by
not requesting that the district court reduce Wright’s guideline offense one
additional level for acceptance of responsibility under U.S.S.G. § 3E1.1(b). As
there was no objection made that the government breached the plea agreement,
review is for plain error. Romano, 314 F.3d at 1281. Pursuant to § 3E1.1(b), a
defendant may qualify for an additional one-level reduction if, inter alia, he timely
notifies authorities of his intention to enter a guilty plea, thus permitting the
government and the court to allocate their resources efficiently. U.S.S.G.
§ 3E1.1(b).
Here, the PSI found that Wright was not entitled to the additional one-level
reduction because his plea was not timely. This likely was because Wright’s plea
was entered the same day as a jury was set to be empaneled for his case.
Moreover, at sentencing, the district court correctly noted that, even if Wright
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received the additional one-level reduction, it would have no impact on his
sentence because, pursuant to statute, the mandatory minimum was 120 months.
Wright’s attorney agreed, and with no further objections, the court adopted the
PSI’s findings and calculations and found it unnecessary to resolve the issue of
whether Wright was entitled to the one-level reduction.
Wright now argues, however, that the issue of the one-level reduction was
not moot because, “[i]f as it appears, the court intended to reward Wright for his
substantial assistance by reducing his sentence from the statutory maximum to the
high end of the otherwise applicable guideline range, then it was crucial that the
range be calculated correctly.” It is true that, notwithstanding the statutory
minimum of 120 months, the PSI calculated a guideline range of 63 to 78 months’
imprisonment without the additional one-level reduction. Nevertheless, Wright has
offered no evidence to suggest that the district court’s downward departure from
the 120-month sentence to a 78-month sentence was a direct result of the PSI’s
calculations. His pure speculation in this regard is insufficient to establish plain
error because, even assuming an error occurred, the district court had discretion
when departing, and the record does not indicate any reasonable probability of a
different outcome solely on the basis of an apparently irrelevant one-level
reduction having no impact on the statutory minimum. Cf. United States v.
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Rodriguez, 398 F.3d 1291, 1299-1301 (2005) (discussing plain error review in
context of Booker Sixth Amendment error, and concluding that, under plain error
review, a defendant will succeed only if he demonstrates that, but for the error,
there was a reasonable probability of a different sentence).
To the contrary, the district court never mentioned what the guideline range
would be absent the 120-month mandatory minimum, and when it sentenced
Wright, it did so believing that a 78-month sentence would meet the objectives of
punishment, deterrence, and incapacitation, all things that it considered particularly
relevant given that Wright was a repeat offender who had committed the instant
offense while on supervised release.
Based on the foregoing, Wright has failed to demonstrate how the
government’s failure to move for an additional one-point reduction at sentencing
violated his substantial rights under plain-error review. In sum, we conclude that
Wright’s substantial rights were not violated where he failed to object to the PSI’s
correct statement for the term of supervised release, and the government’s failure
to request a one-point acceptance of responsibility reduction had no effect on the
guideline calculation in this case. We, therefore, affirm.
AFFIRMED.
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