United States v. Todman ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4491
RONALD TODMAN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-96-197)
Submitted: April 30, 1998
Decided: July 30, 1998
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen III, Federal Public Defender, Gregory Davis, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ronald Todman, Jr., appeals his conviction and sentence for pos-
session of cocaine base in the form of crack cocaine. See 21 U.S.C.
§ 841(a)(1) (1994). The conviction resulted from the discovery of
more than 600 grams of crack cocaine packaged in twenty-three plas-
tic bags as a result of a consensual search of Todman's hotel room.
Todman noted a timely appeal and his attorney filed a brief pursuant
to Anders v. California, 386 U.S. 738, 744 (1967), in which he repre-
sents that there are no arguable issues of merit in this appeal. None-
theless, counsel presented this court with two nascent issues. Todman
filed a pro se supplemental brief, embellishing on counsel's argu-
ments and raising two additional assignments of error. Because we
find each of the claims raised by counsel and Todman to be without
merit and can discern no other error in the record on appeal, we affirm
Todman's conviction and sentence.
Todman's counsel first contends that the district court erred in
refusing to allow Todman to withdraw his plea. The withdrawal of a
guilty plea is not a matter of right. See United States v. Ewing, 957
F.2d 115, 119 (4th Cir. 1992). The defendant bears the burden of
showing a "fair and just" reason for the withdrawal even in the
absence of a showing of prejudice by the Government. See United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). This general rule
is true even when the defendant seeks to withdraw the plea before the
district court formally accepts the plea agreement. See United States
v. Hyde, ___ U.S. ___, 65 U.S.L.W. 4369 (U.S. May 27, 1997) (No.
96-667). We review the district court's denial of the motion to with-
draw the plea for abuse of discretion. See United States v. Wilson, 81
F.3d 1300, 1305 (4th Cir. 1996).
In order to abuse its discretion, a district court must either fail or
refuse to exercise its discretion, or rely on an erroneous legal or fac-
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tual premise in the exercise of its discretionary authority. See James
v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). In this case, there is no
evidence of an abuse of discretion. The district court did not rely on
an erroneous legal or factual premise to exercise its discretion in
denying the motion. The court carefully considered Todman's state-
ments in support of his motion to withdraw his plea in light of his
statements at his Fed. R. Crim. P. 11 hearing. The court found that
Todman's later contentions notwithstanding, Todman's plea of guilty
was knowing and voluntary. See Moore, 931 F.2d at 248.
In his pro se supplemental brief, Todman suggests that his guilty
plea could not have been voluntary, that the district court should not
have accepted it at the plea hearing, and as a result, the court erred
in declining to allow him to withdraw it. Elaborating on these claims,
he contends that he was not fully aware of the nature of the charges
against him and the application of the law to the facts in his case. As
the district court decided, the claim is refuted by his statements under
oath at the plea hearing. "Statements of fact by a defendant in Rule
11 proceedings may not ordinarily be repudiated, and, similarly, find-
ings by a sentencing court in accepting a plea `constitute a formidable
barrier' to attacking the plea." United States v. Lambey, 974 F.2d
1389, 1395 (quoting Blackledge v. Allison, 431 U.S. 63, 73-74
(1977)). Todman has failed, both in his attempt to withdraw his plea
and here on appeal, to overcome the "formidable barrier" his sworn
statements regarding the knowing and voluntary nature of his plea
present. The district court did not abuse its discretion in declining to
allow Todman to withdraw his plea.
Counsel next argues that the district court erred in refusing to allow
Todman a downward adjustment for the acceptance of responsibility.
See U.S. Sentencing Guidelines § 3E1.1 (Nov. 1, 1996). The burden
is on the defendant to establish by a preponderance of the evidence
that he is entitled to the adjustment. See United States v. Urrego-
Linares, 879 F.2d 1234, 1239 (4th Cir. 1989). Whether the reduction
is warranted "is primarily a factual question,[and] due deference for
the sentencing court requires an appellate court to accept its findings
unless they are clearly erroneous." United States v. Cusack, 901 F.2d
29, 31 (4th Cir. 1990). In support of his motion to withdraw his plea,
Todman stated numerous times that he was not guilty of the offense.
Because Todman did not "clearly recognize[ ] and affirmatively
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accept[ ]" his criminal conduct, see United States v. Castner, 50 F.3d
1267, 1280 (4th Cir. 1995), we are not left with the"definite and firm
conviction" that the district court made a mistake in denying the
adjustment. See United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948).
Todman's assertion that his continued declaration of his innocence
was in good faith does not alter the fact that he did not accept respon-
sibility for the criminal conduct with which he was charged. In addi-
tion, his contention that the district court was unaware of its legal
authority to grant the downward adjustment is completely refuted by
the record and the district court's careful deliberations on the issue.
There is no clear error in the district court's conclusion regarding the
propriety of the downward adjustment.
Turning to the additional assignments of error Todman raises in his
pro se supplemental brief, we find that they are equally without merit.
Todman first suggests that the district court failed to comply with
Fed. R. Crim. P. 11 in accepting his guilty plea. Todman specifically
complains that he did not understand the nature of the charges against
him and the district court failed to sufficiently apprise him of that
information.
In explaining the nature of the charges to the defendant, the trial
court is given a wide degree of discretion in deciding the best method
to inform and ensure the defendant's understanding. See United States
v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991). Although the defen-
dant must receive notice of the true nature of the charge rather than
a rote recitation of the elements of the offense, see Henderson v.
Morgan, 426 U.S. 637, 644 (1976), the defendant"need not receive
this information at the plea hearing itself. Rather, a guilty plea may
be knowingly and intelligently made on the basis of detailed informa-
tion received on occasions before the plea hearing." LoConte v.
Dugger, 847 F.2d 745, 751 (11th Cir. 1988). The district court's
detailed explanation of the Government's case in this straightforward
possession with intent to distribute prosecution, in addition to the
record as a whole, show that the district court did not err in accepting
Todman's plea at the conclusion of the Rule 11 hearing.
Todman also urges this court to find that the district court failed to
comply with Rule 11(f) in that there was no factual basis for his intent
4
to distribute the crack cocaine. However, Todman's claim of factual
innocence of the distribution element of his charge ignores the legal
reality that the sheer quantity of drugs, in this case, nearly 620 grams
of crack, is persuasive evidence of Todman's intent to distribute the
cocaine. See United States v. Fisher, 912 F.2d 728, 730 (4th Cir.
1990); see also United States v. Roberts, 881 F.2d 95, 99 (4th Cir.
1989). Todman's additional complaint that the district court failed to
read the stipulation of facts into the record is hypertechnical and dis-
ingenuous, especially in light of the fact that Todman read and signed
the stipulation personally. As a result, there was no violation of Fed.
R. Crim. P. 11(f).
Finally, Todman contends that the assistance rendered by his court-
appointed counsel was constitutionally insufficient. He suggests that
counsel ill-prepared him for his plea hearing in that counsel misad-
vised him about the application of the U.S. Sentencing Guidelines
Manual and failed to explain to him the entire nature of the pending
charges. Todman also claims that the district court violated his right
to counsel because he was forced to prosecute his motion for with-
drawal of his guilty plea without the assistance of counsel. Todman
notes that counsel allowed Todman to explain to the district court the
basis for the motion. However, because Todman couches his entire
argument on this point in terms of counsel's ineffectiveness and
because there was no action on the part of the district court to prevent
counsel from arguing the motion, this assignment of error is better
construed as an additional ineffective assistance of counsel claim.
The court declines to consider the merits of either contention. Fol-
lowing a federal conviction, an ineffective assistance of counsel claim
should ordinarily be raised by a motion under 28 U.S.C.A. § 2255(West 1994 & Supp. 1998), in the district court and not on direct
appeal to this court. See United States v. Fisher, 477 F.2d 300, 302
(4th Cir. 1973); see also DeFusco, 949 F.2d at 120-21. This general
rule is true unless it "conclusively appears" in the trial record that
counsel did not provide effective assistance. See Fisher, 477 F.2d at
302. In this case, it does not "conclusively appear" from the record
on appeal that Todman was denied the effective assistance of counsel
at any stage. Consequently, these claims of ineffective assistance are
more properly advanced in a § 2255 motion.
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As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by his client to do so,
counsel should prepare a timely petition for writ of certiorari. Accord-
ingly, counsel's motion to withdraw is denied. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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