United States v. Pickens , 201 F. App'x 143 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4374
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAURICE PICKENS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-477)
Submitted: July 24, 2006 Decided: September 26, 2006
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. McBratney, Jr., Florence, South Carolina, for Appellant.
Alfred William Walker Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Maurice Pickens pled guilty without the benefit of a plea
agreement to charges of: (1) possession with intent to distribute
five grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(b) (2000); (2) using and carrying a firearm
during and in relation to, and possession of a firearm in
furtherance of, a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A), (c)(2) (2000); and (3) possession of a firearm by
a previously convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (2000). The district court sentenced
Pickens to the minimum penalty provided for by statute, concurrent
120-month sentences on the first and third counts, and a
consecutive 60-month sentence on the second count, for a total of
180 months’ imprisonment.
Pickens appeals. His counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious issues upon which to appeal but seeking this court’s
review of Pickens’ guilty plea, specifically the effect of the
district court’s misstatement at the guilty plea hearing concerning
the drug quantity charged in the indictment’s first count. That
count charged Pickens with possession with intent to distribute
five or more grams of cocaine base. During the Fed. R. Crim. P. 11
colloquy, however, the district court informed Pickens the quantity
charged in the indictment was fifty or more grams of cocaine base.
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Counsel asserts the misstatement denied Pickens the opportunity to
weigh accurately the risks and benefits of a trial.
Because Pickens raises this issue for the first time on
appeal, we review for plain error. See Fed. R. Crim. P. 52(b).
Four conditions must be met before we will notice plain error: (1)
there was error; (2) the error was plain under current law; (3) the
error affects substantial rights, typically meaning the defendant
is prejudiced by the error in that it affected the outcome of the
proceedings; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 733-37 (1993). In the guilty plea
context, to prove that an error is substantial, the defendant must
show that, but for the error, he would not have pled guilty.
United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002).
Here, while the district court misstated the quantity of
drugs for which Pickens was to be held responsible, it accurately
stated the penalty that Pickens would face for the offense, which
Pickens indicated he understood. Thus, Pickens knowingly and
voluntarily entered his guilty plea with an understanding of its
consequences. See United States v. Wood, 378 F.3d 342, 349 (4th
Cir. 2004). Consequently, Pickens’ substantial rights were not
affected by the district court’s misstatement.
Pickens has filed a pro se supplemental brief, in which
he raises three issues. Because Pickens did not raise these issues
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below, we review them for plain error. See Olano, 507 U.S. at 732-
34.
First, Pickens claims he is actually innocent on the
second count, despite his guilty plea. Pickens admitted that the
police seized drugs and two firearms, over which he held dominion
and control, from his bedroom. The district court properly found
a factual basis for the guilty plea and that he pled guilty
knowingly and intelligently. As Pickens’ guilty plea was valid, he
waived all antecedent nonjurisdictional defects, including claims
of actual innocence. Tollett v. Henderson, 411 U.S. 258, 266-67
(1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993).
Next, Pickens claims the district court did not properly
comply with 21 U.S.C. § 851(b) (2000), because it failed to ask
whether Pickens admitted or denied a 1989 felony conviction for
possession with intent to distribute cocaine base, as alleged in
the Government’s information filed pursuant to § 851. However, as
was noted in the presentence report and at the sentencing hearing,
the Government’s information mischaracterized Pickens’ prior felony
conviction; in fact, he had been convicted of possession of cocaine
base. At the sentencing hearing, Pickens readily admitted to this
prior felony conviction.
Pickens “must prove that error ‘actually affected the
outcome of the proceedings.’” United States v. Ellis, 326 F.3d
593, 599 (4th Cir. 2003) (quoting United States v. Hastings, 134
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F.3d 235, 240 (4th Cir. 1998)). We find he demonstrates neither
that the district court erred by failing to question him concerning
a legally immaterial detail of his prior felony conviction that all
contemporaneously acknowledged was incorrect, nor that any such
error would have affected the outcome of the sentencing proceeding.
Finally, Pickens claims the district court should have
afforded him the benefit of the “safety valve” provision when
imposing sentence. See 18 U.S.C. § 3553(f) (2000); U.S. Sentencing
Guidelines Manual (USSG) § 5C1.2 (2003). Under this provision, a
defendant who provides timely and truthful information about his
offenses to the Government may be sentenced without regard to
statutory mandatory minimums, if he meets all the requirements set
forth in the statute. 18 U.S.C. § 3553(f) (2000); USSG § 5C1.2;
United States v. Beltran-Ortiz, 91 F.3d 665, 667 (4th Cir. 1996).
However, Pickens was clearly ineligible for this “safety valve”
provision in light of his firearm conviction pursuant to § 924(c).
See 18 U.S.C. § 3553(f)(2) (2000) (requiring that “the defendant
did not use violence or credible threats of violence or possess a
firearm or other dangerous weapon . . . in connection with the
offense”); USSG § 5C1.2(a)(2) (same).
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
the judgment of the district court. This court requires that
counsel inform his client, in writing, of his right to petition the
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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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