United States v. Bruce Elliott Wilson , 245 F. App'x 10 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16483 June 26, 2007
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 05-00040-CR-1-RDP-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE ELLIOTT WILSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(June 26, 2007)
Before EDMONDSON, Chief Judge, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Bruce Elliot Wilson (“Wilson”) appeals his 47-month sentence for being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). By order
dated 29 November 2006, we concluded that Wilson is barred by an appeal waiver
from challenging the district court’s application of the sentencing guidelines and
the reasonableness of his sentence. After further review of the record, we
conclude that Wilson’s claims of ineffective assistance of counsel are without
merit; we therefore affirm Wilson’s sentence.1
Wilson initially pled not guilty to the section 922(g)(1) charge, but later
entered a guilty plea pursuant to a written plea agreement, which included a
waiver provision that excepted claims of ineffective assistance of counsel. In
accordance with Fed. R. Crim. P. 11, the district court conducted a plea colloquy
and established that Wilson wished to plead guilty and understood the rights he
was waiving. During the colloquy, Wilson acknowledged that he understood that
his potential sentence could be as much as ten to fifteen years, that he had
discussed the sentencing guidelines with his counsel, and that a sentence higher
than estimated would not be grounds for setting aside the plea. Wilson also
indicated that he was “fully satisfied with the representation and advice” received
from his counsel.
1
In our prior order, we reserved judgment on Wilson’s ineffective assistance claim, noting that
we did not have access to the transcript of the 26 October 2006 hearing, during which Wilson
indicates that the district court denied that claim after extensive discussion. Wilson has since filed
a transcript of that hearing.
2
Nevertheless, Wilson later filed two pro se motions to discharge his
appointed counsel on the grounds of ineffective assistance, claiming that counsel
made certain legal errors about the indictment and that counsel misinformed
Wilson of the possible sentencing range. Wilson’s attorney also filed a motion to
withdraw as counsel based on a strained relationship with Wilson. A magistrate
judge denied Wilson’s second motion2 and his counsel’s motion on 25 October
2005, noting that (1) the motions were made “on the eve of sentencing,” (2) the
district court had explained the possible sentencing range during the colloquy, and
(3) permitting Wilson’s counsel to withdraw would cause unnecessary delay.
Neither Wilson nor his counsel filed objections to the magistrate’s order
with the district court, although the district court raised the motions sua sponte
during the 26 October 2005 sentencing hearing. The court informed Wilson that
the indictment had not been amended, that Wilson’s counsel “has done quite
well,” and that Wilson had previously acknowledged that a higher than anticipated
sentence would not be the basis for invalidating the guilty plea. The court
ultimately sentenced Wilson to 47 months’ imprisonment, followed by a three-year
term of supervised release.
2
Neither the magistrate nor the district court ruled explicitly on Wilson’s initial motion for new
counsel.
3
The only remaining issue in Wilson’s appeal is whether the district court
erred in denying his motions to dismiss trial counsel for ineffective assistance.
Although we generally do not review ineffective assistance claims on direct
appeal, see Massaro v. United States, 538 U.S. 500, 504 (2003), the record in this
case indicates that, at the 26 October hearing, the district court considered and
rejected Wilson’s claim that his trial counsel failed to inform Wilson adequately of
the range of punishment he faced if he pled guilty.3 See United States v.
Camacho, 40 F.3d 349, 355 (11th Cir. 1994) (noting that we may hear ineffective
assistance claim on direct appeal if record is sufficiently developed), overruled in
part on other grounds by United States v. Sanchez, 269 F.3d 1250 (11th Cir.
2005). The question of “[w]hether a criminal defendant’s trial counsel was
ineffective is a mixed question of law and fact, subject to de novo review.” United
States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).
To succeed on a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance was deficient and that “there is a reasonable
3
During the hearing, the district judge stated that he “would be very surprised to find out that
[counsel] didn’t tell you about [sentencing] contingencies when you and he discussed these” and then
said: “But in any event I specifically told you don’t rely upon anyone’s estimate, including your own,
about what your base offense level may be or what your guideline range may be or what the ultimate
sentence may be . . . .” The judge also told Wilson that “the fact that you are getting a higher than
estimated sentence was something you specifically told me you understood would not be the basis
for changing your plea.”
4
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
690, 694 (1984). As the district court implicitly determined, even if Wilson’s
counsel was in some way deficient in advising Wilson of the possible sentencing
implications from his guilty plea, Wilson cannot establish prejudice.4 During the
plea colloquy, the district court itself explained to Wilson – in detail – the
consequences of the plea agreement, range of punishment, and sentencing
contingencies before accepting Wilson’s guilty plea. Thus, any failure on the part
of Wilson’s counsel to clearly explain the possible punishment was cured by the
district court. For this reason, Wilson’s sentence is
AFFIRMED.
4
In general, we lack jurisdiction to review a magistrate judge’s order where the party appealing
such order “failed to object to or appeal the magistrate judge’s decision to the district court.” United
States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003); see also Fed. R. Crim. P. 59(a) (noting that
a party’s failure to object to a magistrate’s order on a nondispositive motion “waives a party’s right
to review”). But, although Wilson did not file formal objections to the magistrate’s order, he did
discuss the contentions contained in his motions with the district judge at the 26 October sentencing
hearing. We think the district court’s consideration and rejection of those contentions sufficient to
provide us with jurisdiction over this issue.
5