United States v. Sheketa Hoke , 442 F. App'x 851 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4116
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHEKETA HOKE,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00224-RJC-1)
Submitted: July 28, 2011 Decided: August 15, 2011
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Deke Falls, BARNETT & FALLS, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Sheketa Hoke pled guilty without a written plea
agreement to: conspiracy to defraud the United States, 18 U.S.C.
§ 371 (2006); armed bank robbery and aiding and abetting the
same, 18 U.S.C. §§ 2113(d), 2 (2006); conspiracy to use and
possess a firearm during and in relation to a crime of violence,
18 U.S.C. § 924(o); and possession of a firearm during and in
relation to a crime of violence and aiding and abetting the
same, 18 U.S.C. §§ 924(c), 2 (2006). Hoke was sentenced to 144
months in prison. She now appeals. Her attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738(1967), raising two issues but stating that there are no non-
frivolous issues for appeal. Hoke was advised of her right to
file a pro se supplemental brief but has not filed such a brief.
We affirm.
I
Hoke first contends that her guilty plea to the
firearm offenses was invalid because she neither used nor
possessed a firearm. This claim is at odds with her statements
at the Fed. R. Crim. P. 11 hearing that she understood the
offenses with which she was charged and that she was guilty of
those offenses. Additionally, at the hearing, Hoke represented
to the court that her plea was not the result of threats or
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intimidation, and that no one had forced her to plead guilty or
promised her a lenient sentence in exchange for her plea. At
Hoke’s sentencing, the parties stipulated that there was a
factual basis for the guilty plea.
Absent compelling evidence to the contrary, the “truth
of sworn statements made during a Rule 11 colloquy is
conclusively established.” United States v. Lemaster, 403 F.3d
216, 221-22 (4th Cir. 2005); see also Blackledge v. Allison, 431
U.S. 63, 74 (1977) (holding that a defendant’s declaration at
the Rule 11 hearing “carr[ies] a strong presumption of verity”);
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991)
(concluding that a defendant’s statements at a Rule 11 hearing
that he was neither coerced nor threatened was “strong evidence
of the voluntariness of his plea”).
In light of these authorities, Hoke’s admission of
guilt at the Rule 11 hearing, the stipulation of a factual
basis, and the absence of compelling contrary evidence, we
conclude that Hoke’s claim lacks merit. *
*
We note additionally that, under the Pinkerton doctrine,
see Pinkerton v. United States, 328 U.S. 640, 646-47 (1946),
“[a] defendant may be convicted of a § 924(c) charge on the
basis of a coconspirator’s use of a gun if the use was in
furtherance of the conspiracy and was reasonably foreseeable to
the defendant.” United States v. Wilson, 135 F.3d 291, 305 (4th
Cir. 1998); see also United States v. Cummings, 937 F.2d 941,
944 (4th Cir. 1991). Here, Hoke entered the bank with three co-
conspirators, one of whom brandished a firearm. She accordingly
(Continued)
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II
Hoke also contends that her base offense level was
improperly increased by two levels based on her use of a minor
in the offense. See U.S. Sentencing Guidelines Manual § 3B1.4
(2009). The Guidelines provides for an enhancement “[i]f the
defendant used or attempted to use a person less than eighteen
years of age to commit the offense.” “Use or attempted use
includes directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting.”
USSG § 3B1.4, cmt. n.1.
The district court credited the testimony at
sentencing of FBI special Agent Chad Pupillo. According to
Pupillo, Malik Shropshire and Frances Howze both informed
authorities that it was Hoke’s idea to rob the bank and that
Hoke asked Shropshire, who was seventeen, to scout the bank in
advance of the robbery. Shropshire did as Hoke requested,
posing as a college student who wanted to open an account when
he cased the bank. Hoke also assigned Shropshire his role
during the robbery. This testimony clearly establishes that the
enhancement was appropriate.
was liable for the firearms offenses under the Pinkerton
doctrine.
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III
After reviewing the entire record in accordance with
Anders, we conclude that there are no meritorious issues for
appeal. We therefore affirm. This court requires that counsel
inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client 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 of the motion was served
on his client. 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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