United States v. Lee , 230 F. App'x 245 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4716
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN SHERMAN LEE,
Defendant - Appellant.
No. 06-4896
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL SCOTT CRISP,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-01124-TLW; 4:05-cr-01124-TLW-2)
Submitted: February 28, 2007 Decided: May 14, 2007
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas G. Nessler, Jr., Surfside Beach, South Carolina; Kathy Price
Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South Carolina, for
Appellants. Alfred William Walker Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
John Sherman Lee and Michael Scott Crisp, co-defendants
in an armed robbery prosecution, appeal from their convictions and
sentences. Crisp pled guilty to possession of a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.A.
§ 924(c)(1) (West 2000 & Supp. 2006). Pursuant to his plea
agreement, Crisp agreed to testify against Lee at his trial. After
Lee’s trial commenced, Lee pled guilty without the benefit of a
plea agreement to armed robbery, in violation of 18 U.S.C.
§ 1951(a) (2000), possession of a firearm by a felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e) (2000), and possession of a
firearm in furtherance of a crime of violence, in violation of 18
U.S.C.A. § 924(c)(1). Both Lee and Crisp were sentenced as career
offenders, pursuant to United States Sentencing Guidelines Manual
(USSG) § 4B1.1 (2005), and received sentences of 312 and 204
months’ imprisonment, respectively.
On appeal, counsel for Lee and Crisp have filed a
consolidated brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting that there are no meritorious issues on appeal
but that their clients challenge the adequacy of their Fed. R.
Crim. P. 11 hearings and the reasonableness of their sentences.
Lee and Crisp have filed pro se supplemental briefs, in which they
raise a number of issues regarding the effectiveness of their trial
counsel and the calculation of the Guidelines ranges at sentencing.
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Because our review of the record discloses no reversible error, we
affirm.
Both Lee and Crisp contend that the district court failed
to comply with the requirements of Fed. R. Crim. P. 11 in
conducting their guilty plea hearings. During a Rule 11 plea
colloquy, the district court must address the defendant in open
court and inform him of the following: the nature of the charge;
any mandatory minimum sentence and the maximum possible sentence;
the applicability of the sentencing guidelines; the court’s
obligation to impose a special assessment; the defendant’s right to
an attorney; his right to plead not guilty and be tried by a jury
with the assistance of counsel; his right to confront and
cross-examine witnesses; his right against self-incrimination; and
his right to testify, present evidence, and compel the attendance
of witnesses. The defendant also must be told that a guilty plea
waives any further trial and that his answers at the proceeding may
be used against him in a prosecution for perjury. Under Rule
11(b)(2), the court must address the defendant to determine that
the plea is voluntary. The court must require disclosure of any
plea agreement under Rule 11(c)(2) and determine a factual basis
for the plea under Rule 11(b)(3). Because neither Lee nor Crisp
moved in the district court to withdraw their guilty plea, any
challenges to the Rule 11 hearing are reviewed for plain error.
See United States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).
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After a thorough review of the record, we find that there
were no errors with respect to the Rule 11 plea colloquies. At
both plea hearings, the district court informed the defendants of
the rights that they were giving up as a result of their pleas,
detailed the nature of the charges and penalties they faced,
determined that their pleas were voluntary, and concluded that
there was a sufficient factual basis for each of their pleas.
Therefore, the record establishes that both Lee and Crisp knowingly
and voluntarily entered into their respective guilty pleas with a
full understanding of the consequences, and there was no error in
the district court’s acceptance of their pleas.
Lee and Crisp also assert that the sentences imposed by
the district court were unreasonable. After United States v.
Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound
by the range prescribed by the sentencing guidelines. See United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). In a
post-Booker sentencing such as the one at issue, the district court
must calculate the appropriate Guidelines range, consider that
range in conjunction with other relevant factors under the
Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and
impose a sentence. United States v. Green, 436 F.3d 449, 455-56
(4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). A post-Booker
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Hughes, 401 F.3d at 546-47 (citations omitted). “[A]
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sentence within the properly calculated Guidelines range . . . is
presumptively reasonable.” Green, 436 F.3d at 457 (internal
quotation marks and citation omitted).
As noted by the district court, Lee faced a minimum of
fifteen years’ imprisonment for possession of a firearm by a felon,
pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), with a maximum
sentence of life in prison. As for Crisp, his conviction for
possession of a firearm in furtherance of a crime of violence
carried a minimum term of imprisonment of ten years, with a maximum
term of life, pursuant to 18 U.S.C.A. § 924(c)(1). Therefore,
their respective sentences of 312 and 204 months’ imprisonment were
within the statutory maximum.
As for the calculation of the advisory Guidelines ranges,
both defendants were determined to be career offenders under USSG
§ 4B1.1(c)(3), and pursuant to USSG § 4B1.1, each received a
criminal history category of VI. Crisp’s Guidelines range was
reduced after the Government filed a § 5K1.1 motion, as the
district court lowered his offense level by four levels. The
district court determined Lee’s Guidelines range to be 292 to 365
months’ imprisonment, while Crisp’s Guidelines range was calculated
to be between 168 to 210 months’ imprisonment. The district court
considered the § 3553(a) factors, and Lee and Crisp’s respective
sentences of 312 and 204 months’ imprisonment were within the
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properly calculated Guidelines ranges. Therefore, we conclude that
the sentences imposed by the district court were not unreasonable.
In his pro se supplemental brief, Lee makes various
claims regarding the effectiveness of his trial counsel. However,
a claim of ineffective assistance of counsel should be raised in a
28 U.S.C. § 2255 (2000) motion with the district court rather than
on direct appeal, unless the record conclusively demonstrates
ineffective assistance. United States v. King, 119 F.3d 290, 295
(4th Cir. 1997) (internal citations and quotations omitted). Such
a claim cannot be fairly adjudicated on direct appeal where the
appellant has not raised the issue before the district court and
there is no statement from counsel on the record. United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Regarding Lee’s
claims of ineffective assistance, there is no evidence on the
record to support his allegations. Therefore, Lee’s claims should
be raised as part of a § 2255 motion rather than on direct appeal.
Lee also alleges that his previous counsel, Michael
Meetze, who was appointed from the Federal Public Defender’s
Office, was improperly removed from his case and replaced by his
current attorney, Thomas Nessler, Jr. Lee claims that Meetze was
removed by the district court due to an alleged conflict of
interest regarding a witness for the Government. However, Lee
asserts that no conflict actually existed and that the Government
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used the witness, who was never called at trial, to circumvent his
right to a speedy trial.
The record indicates that Meetze’s appointment was
terminated in January 2006 because the district court determined
that Lee had sufficient funds for “payment of compensation and
expenses of court-appointed counsel . . . .” Nessler was
subsequently named as counsel for Lee and was granted a continuance
of the March trial date, as the district court determined that the
continuance was justified as serving the “ends of justice,”
pursuant to 18 U.S.C. § 3161(h)(8)(A) (2000). In light of the fact
that Nessler was appointed as counsel less than thirty days before
the pre-trial conference and had met only once with his client, we
find that the district court adequately weighed the continuance
against the interests of the public and the defendant in a speedy
trial, and properly continued the trial date to allow counsel to
become more familiar with the case. See United States v. Keith, 42
F.3d 234, 237-38 (4th Cir. 1994). To the extent that Lee contends
that his preferred counsel was erroneously removed, there is no
evidence on the record to support Lee’s assertions, as it appears
that Lee did not qualify for representation by the Federal Public
Defender because he had sufficient funds to make at least partial
payment for representation by court-appointed counsel. While Lee
claims he objected to Meetze’s removal, Lee has no right to choose
the particular attorney appointed to represent him. See Miller v.
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Smith, 115 F.3d 1136, 1143-44 (4th Cir. 1997). Therefore, we find
that the district court did not err by substituting attorneys.
In his pro se supplemental brief, Crisp also makes
various claims regarding ineffective assistance given by his trial
counsel. However, Crisp’s claims regarding ineffective assistance
must be raised as part of a § 2255 motion rather than on direct
appeal, as there is no evidence on the record to support his
allegations. See King, 119 F.3d at 295.
Crisp also contends that one of his juvenile convictions
was improperly considered in the district court’s determination of
whether he qualified as a career offender. In order for Crisp to
be designated a career offender, the Government had to establish
(1) that Crisp was at least 18 at the time of the instant offense,
(2) that the instant offense is a felony that is either a “crime of
violence” or a “controlled substance offense,” and (3) that Crisp
had at least two prior felony convictions for either a “crime of
violence” or a “controlled substance offense.” USSG § 4B1.1(a).
Crisp’s criminal history does include two prior juvenile
convictions; however, Crisp’s criminal history also includes two
adult felony convictions involving breaking and entering. Pursuant
to USSG § 4B1.2(a)(2), burglary of a dwelling constitutes a crime
of violence. See United States v. Harrison, 58 F.3d 115, 119 (4th
Cir. 1995). Therefore, Crisp has at least two prior felony
convictions for a crime of violence, regardless of whether his
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juvenile convictions are considered, and was properly determined by
the district court to be a career offender.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Lee and Crisp’s convictions and sentences. This
court requires counsel inform their clients, in writing, of their
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 thereof
was served on the 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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