United States v. Fulton ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4436
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD L. FULTON, a/k/a Brandon B.
Washington, a/k/a Kevin, a/k/a Kev,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James H. Michael, Jr.,
Senior District Judge. (CR-01-75)
Submitted: January 15, 2004 Decided: January 27, 2004
Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Roland M.L. Santos, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, William F. Gould, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Richard Leroy Fulton appeals his convictions and sentence
entered after his guilty plea to conspiracy to distribute and to
possess with intent to distribute cocaine and possession of a
firearm by a felon. On appeal, Fulton contends that (1) the
district court erred in denying his motion to withdraw his guilty
plea; (2) the district court improperly failed to rule upon his pro
se motion based on ineffective assistance of counsel; and (3) his
criminal history was improperly calculated. Because each of the
claims raised by Fulton is without merit, we affirm.
Fulton’s motion to withdraw his plea alleged that his
Fed. R. Crim. P. 11 colloquy was improper because the court failed
to inform him of the nature of the charges against him and failed
to require him to describe his participation in the conspiracy. We
review the district court’s denial of the motion to withdraw the
plea for abuse of discretion. United States v. Wilson, 81 F.3d
1300, 1305 (4th Cir. 1996). Contrary to Fulton’s arguments, at his
Rule 11 hearing, he was informed of the elements of each of the
charges against him and of the evidence that the Government would
produce at trial, and he stated that he understood and agreed.
Thus, there was no abuse of discretion in denying Fulton’s motion.
Next, Fulton alleges that the district court failed to
rule on his pro se motion to withdraw his guilty plea based on
ineffective assistance. Specifically, he claimed that his attorney
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assured him that he would not receive a role enhancement. However,
since Fulton described his pro se motion as an addendum to his
counsel’s motion, the district court’s denial of the motion to
withdraw covered both the counseled and pro se portions. In any
event, because Fulton testified at his Rule 11 hearing that he was
fully satisfied with his attorney and that there were no promises
or assurances made regarding his sentence, there was no abuse of
discretion in denying Fulton’s pro se motion.
Finally, Fulton contends that his criminal history
calculation improperly included one point for a conviction that was
part of the same transaction as the federal charges to which Fulton
pled guilty. Because this claim is raised for the first time on
appeal, we review only for plain error. United States v. Ravitch,
128 F.3d 865, 869 (5th Cir. 1997). Reviewing for plain error, we
will uphold a defendant’s sentence if, on remand, the district
court would reinstate the same sentence. Id. Because Fulton’s
criminal history category would not change even if one point were
removed from the calculation, there was no plain error.
Accordingly, we affirm Fulton’s convictions and sentence.
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
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