United States v. Clifton Barnes , 452 F. App'x 319 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4854
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CLIFTON BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00256-FDW-1)
Submitted: September 30, 2011 Decided: October 26, 2011
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR.,
Monroe, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clifton Barnes appeals from his conviction and
resulting 262-month sentence after pleading guilty to possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g) (2006), and possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(b)(1)(C) (2006).
(ER 212). Barnes’ counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that in his
view, there are no meritorious issues, but raising the issue of
whether the district court erred in denying Barnes’ motion to
withdraw his guilty plea. We conclude that the court did not
err in denying Barnes’ motion to withdraw as to the possession
with intent to distribute count, and affirm that conviction. We
reverse Barnes’ felon in possession of a firearm conviction, and
vacate the sentence and remand for resentencing in light of
United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th
Cir. Aug. 17, 2011).
Barnes moved to withdraw his guilty plea after the
presentence report (PSR) was prepared showing that he qualified
as a career offender and citing the statutory maximum for the
possession with intent to distribute cocaine base count was life
imprisonment. Because of an error in the superseding
indictment, which did not specify drug quantity, the statutory
maximum was reduced from life to thirty years. The court held a
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hearing on the motion to withdraw and denied the motion. Prior
to sentencing, the Government filed a “Notice of Intention to
Seek Enhanced Penalties Title 21 U.S.C. § 851” noting Barnes had
been previously convicted in 1995 and 2000 in North Carolina
state court of felony possession of cocaine with intent to
sell/deliver cocaine. These are the same convictions that were
relied on as predicate offenses for the felon in possession of a
firearm count and for the career offender Guideline.
At sentencing, counsel filed a general objection to
the entire PSR, and the court permitted Barnes to discuss each
paragraph to which he objected. Among other things, Barnes
objected to the use of the North Carolina convictions to
increase his sentence based on the career offender enhancement
because the sentences he received were not more than twelve
months. The court denied the objection. The court sentenced
Barnes to 120 months on the felon in possession of a firearm
count and 262 months for possession with intent to distribute
cocaine base, to be served concurrently.
At the time of Barnes’ indictment and conviction, this
court determined whether a prior conviction qualified as a
felony for purposes of § 922(g)(1) by considering “the maximum
aggravated sentence that could be imposed for that crime upon a
defendant with the worst possible criminal history.” United
States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005). While
3
Barnes’ appeal was pending, however, Harp was overruled by the
en banc decision in Simmons. See Simmons, 2011 WL 3607266, at
*3. Simmons held that a prior North Carolina offense was
punishable for a term exceeding one year only if the particular
defendant before the court had been eligible for such a sentence
under the applicable statutory scheme, taking into account his
criminal history and the nature of his offense. Id. at *8; see
also N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009) (setting forth
North Carolina’s structured sentencing scheme).
Under Simmons, it does not appear that Barnes’ prior
North Carolina convictions were crimes punishable by
imprisonment for terms exceeding one year for purposes of the
federal felon-in-possession statute. We do not have the state
court record on appeal. However, in light of Barnes’ 5-6 and
6-8 month sentences, under the North Carolina sentencing table,
it appears that Barnes could not have received a sentence of
more than twelve months. See N.C. Gen. Stat. § 15A-1340.17(c),
(d).
Accordingly, we vacate Barnes’ conviction and sentence
on the felon in possession of a firearm count and remand for
further proceedings. Because these convictions served as the
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basis for the § 851 information and career offender status, 1 we
also vacate the sentence for the drug offense and remand for
resentencing.
Barnes’ counsel questions whether the district court
abused its discretion in denying Barnes’ motion to withdraw his
guilty plea, but ultimately concludes that the court did not err
in denying the motion. Barnes also raises this issue in his pro
se informal brief, arguing that he should have been permitted to
withdraw his plea because he thought he would be able to
challenge the motion to suppress ruling and that his
understanding was that he would not receive a sentence above 188
months.
This court reviews a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
“A defendant has no absolute right to withdraw a guilty plea.”
United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003)
(internal quotation marks omitted). Once the district court has
accepted a defendant’s guilty plea, it is within the court’s
discretion whether to grant a motion to withdraw it. United
States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). The
1
Barnes contested the applicability of the career offender
status in his pro se informal brief.
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defendant bears the burden of showing a “fair and just reason”
for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B);
Battle, 499 F.3d at 319. “[A] ‘fair and just’ reason . . . is
one that essentially challenges . . . the fairness of the Rule
11 proceeding.” United States v. Lambey, 974 F.2d 1389, 1394
(4th Cir. 1992). “[R]eversal is warranted only if the plea
proceedings were marred by a fundamental defect that inherently
resulted in a complete miscarriage of justice, or in omissions
inconsistent with rudimentary demands of fair procedure.”
Ubakanma, 215 F.3d at 425.
When considering whether to allow a defendant to
withdraw a guilty plea, the trial court must conduct the
six-factor analysis announced in United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991). Under Moore, a district court
considers:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
Id.Although all the factors in Moore should be given
appropriate weight, the key to determining whether a motion to
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withdraw should be granted is whether the Rule 11 hearing was
properly conducted. Bowman, 348 F.3d at 414; United States v.
Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). This court closely
scrutinizes the Rule 11 colloquy and attaches a strong
presumption that the plea is final and binding if the Rule 11
proceeding is adequate. Lambey, 974 F.2d at 1394.
Here, the district court substantially complied with
the mandates of Rule 11 in accepting Barnes’ guilty plea.
Therefore, the plea is presumed to be “final and binding.” Id.Moreover, Barnes has failed to establish the existence of a
“fair and just” reason for withdrawing the plea. See Fed. R.
Crim. P. 11(d)(2)(B).
Because, of the six Moore factors, the first two of
whether the plea was knowing and voluntary and whether the
defendant is innocent are the most important factors to
consider, we conclude the district court did not abuse its
discretion in denying Barnes’ motion to withdraw. At the
hearing, Barnes claimed that he thought the maximum sentence
would be 188 months. In addition, he thought that even though
he was pleading guilty he would be able to raise a suppression
issue on appeal. Barnes pleaded “straight up” and maintained
his appellate rights; however, this does not entitle him to
challenge antecedent constitutional claims related to his
conviction.
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The district court held a lengthy hearing on the
motion to withdraw with testimony by Barnes and a detective
involved at the scene of arrest. The court properly decided
that the guilty plea was voluntary and knowing even though the
sentencing range was 188-235 months instead of the maximum of
188 months alleged by Barnes. 2 The court held that, even if an
estimated sentence of 188 months was what Barnes understood, it
was sufficient for the defendant to be informed because the
court told Barnes that it was an estimate of his sentence.
Further, at the hearing, Barnes admitted that he remembered the
Assistant U.S. Attorney saying that he would recommend 188, the
low end of the Guidelines range. At the Rule 11 hearing,
Barnes’ counsel stated that the sentence would be 188 months to
“two hundred something.” The transcript of the Rule 11 hearing
demonstrates that the AUSA stated that Barnes is a career
offender, and that 188 would be the low end of the Guidelines
range. Barnes also acknowledged at the Rule 11 hearing that the
court had discretion to impose a higher sentence.
The court also found that Barnes had not met his
burden to prove factual innocence since, at the time officers
executed a search warrant at his residence, he was found covered
2
This was the applicable Guidelines range before the court
struck the three-level reduction for acceptance of
responsibility.
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in cocaine paste and running out of the residence. The officers
found cocaine, scales, crack, pyrex containers containing crack,
an amount of crack mixture in a bowl in the microwave, and
smudges of crack paste on the kitchen counter, doorway, and out
the door that Barnes ran through. Barnes claimed that he did
not know what the paste was or how it got on him. However, no
one else in the residence had crack paste or residue on them.
We conclude the court did not err in finding that Barnes had not
made a credible showing of his legal innocence. In
consideration of these findings and reviewing the other Moore
factors, we conclude that the court did not abuse its discretion
in denying the motion.
In accordance with Anders, we have reviewed the record
in this case and have found no other meritorious issues for
appeal. We therefore affirm in part, vacate in part, and
remand. We deny Barnes’ motions to produce grand jury records
and for a transcript at Government expense and motion for
discovery. This court requires that counsel inform Barnes, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Barnes requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Barnes.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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