United States v. Shanklin , 193 F. App'x 384 ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  August 11, 2006
    Charles R. Fulbruge III
    Clerk
    No. 05-51337
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    STEVEN DALE SHANKLIN,
    Defendant-Appellant.
    --------------------
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 1:05-CR-64-ALL
    --------------------
    Before DAVIS, WIENER and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    Steven Dale Shanklin appeals his guilty-plea conviction and
    sentence for tax evasion.   He has filed a motion for release
    pending appeal and a motion for expedited consideration of his
    motion for release pending appeal.
    Shanklin argues that the district court abused its
    discretion by denying his motion to withdraw guilty plea.        For
    the first time in his reply brief, he maintains that the district
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 05-51337
    -2-
    court erred by allowing him less than two minutes to present
    argument in support of his motion to withdraw guilty plea.
    Shanklin did not unequivocally assert his innocence when
    arguing his motion to withdraw guilty plea and, at rearraignment,
    Shanklin unequivocally admitted, under oath, that he was guilty
    and that his plea was knowing and voluntary.   See United States
    v. Lampazianie, 
    251 F.3d 519
    , 524 (5th Cir. 2001) (citation
    omitted) (strong presumption of validity to declarations under
    oath in open court).   Additionally, Shanklin waited until the day
    of the second sentencing hearing, more than four months after the
    entry of his guilty plea, to move to withdraw the guilty plea.
    See United States v. Grant, 
    117 F.3d 788
    , 790 (5th Cir. 1997)
    (withdrawal of guilty plea at sentencing inconveniences court and
    wastes judicial resources).   Given the totality of the
    circumstances, Shanklin has not shown that the district court
    abused its discretion by denying his motion to withdraw guilty
    plea.**   See United States v. Powell, 
    354 F.3d 362
    , 370 (5th Cir.
    2003).
    For the first time on appeal, Shanklin argues that the
    district court plainly erred by denying his motion to withdraw
    guilty plea because he did not waive his right to a jury trial in
    writing as required by FED. R. CRIM. P. 23(a)(1).   Because
    **
    We do not consider Shanklin’s assertion that he was not
    given enough time to present argument in support of his motion to
    withdraw guilty plea because it was raised for the first time in
    his reply brief. See United States v. Prince, 
    868 F.2d 1379
    ,
    1386 (5th Cir. 1989).
    No. 05-51337
    -3-
    Shanklin did not raise this issue below, we review for plain
    error.   See United States v. Hull, 
    160 F.3d 265
    , 271 (5th Cir.
    1998).    Shanklin’s guilty plea waived his right to a trial by
    jury.    See United States v. Robertson, 
    698 F.2d 703
    , 707 (5th
    Cir. 1983).    Thus, Shanklin was not “entitled to a jury trial”
    and the requirement that a jury trial waiver be in writing was
    inapplicable.    See FED. R. CRIM. P. 23(a).   Accordingly, the
    district court did not commit error under FED. R. CRIM. P. 23(a),
    plain or otherwise, by denying Shanklin’s motion to withdraw
    guilty plea.
    For the first time on appeal, Shanklin argues that the
    district court plainly erred by denying his motion to withdraw
    guilty plea because his plea agreement contained a binding
    sentencing recommendation pursuant to FED. R. CRIM. P. 11(c)(1)(C)
    and the district court allegedly violated FED. R. CRIM. P.
    11(c)(5)(B) by rejecting the agreement without allowing him the
    opportunity to withdraw his guilty plea.       Alternatively, Shanklin
    maintains that if the sentencing recommendation was non-binding
    pursuant to FED. R. CRIM. P. 11(c)(1)(B), the district court
    plainly erred by not advising him at rearraignment that he had no
    right to withdraw his guilty plea if it did not follow the
    recommendation as required by FED. R. CRIM. P. 11(c)(3)(B).
    The stipulation between Shanklin and the Government
    regarding the total tax loss under U.S.S.G. §§ 2T1.1 and 2T4.1
    specifically stated that it was not binding on the district
    No. 05-51337
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    court.   Accordingly, the recommendation was a non-binding
    recommendation pursuant to FED. R. CRIM. P. 11(c)(1)(B).
    At rearraignment, the district court did not advise Shanklin
    that he had no right to withdraw his guilty plea if it did not
    follow the recommendation in the plea agreement as required by
    FED. R. CRIM. P. 11(c)(3)(B).   Because Shanklin did not raise any
    objections during rearraignment, we review for plain error.       See
    United States v. Vonn, 
    535 U.S. 55
    , 59 (2002).    At rearraignment,
    the district court advised Shanklin that the Guidelines were
    advisory and that he could receive a sentence as high as the
    statutory maximum.   Furthermore, the plea agreement clearly
    stated that the recommendation was not binding.    Thus, the
    district court’s error could not have materially affected his
    decision to plead guilty and was not plain error.    See United
    States v. Johnson, 
    1 F.3d 296
    , 302 (5th Cir. 1993) (en banc).
    For the first time on appeal, Shanklin argues that the
    district court’s denial of his motion to withdraw guilty plea
    violated his Fifth Amendment right to due process and his Sixth
    Amendment right to a jury trial.    We review this contention for
    plain error.   See Hull, 
    160 F.3d at 271
    .   The Fifth Amendment did
    not bar Shanklin’s guilty plea, and Shanklin did not have an
    absolute right to withdraw his guilty plea.    See Brady v. United
    States, 
    397 U.S. 742
    , 753 (1970) (Fifth Amendment does not bar
    guilty pleas); Powell, 
    354 F.3d at 370
     (no absolute right to
    withdraw guilty plea).   Shanklin’s Sixth Amendment right to a
    No. 05-51337
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    jury trial was waived by his guilty plea.     See Robertson, 
    698 F.2d at 707
    .
    Shanklin argues that the district court erred by denying his
    request to represent himself at sentencing.    A criminal defendant
    has a Sixth Amendment right to represent himself as well as a
    statutory right.   Faretta v. California, 
    422 U.S. 806
    , 819-34
    (1975); 
    28 U.S.C. § 1654
    .   The district court’s ruling on
    Shanklin’s self-representation request, however, was ambiguous,
    and the district court allowed Shanklin to conduct his own
    defense at sentencing.   Shanklin’s counsel remained present to
    consult with Shanklin if Shanklin requested and did not interject
    anything into Shanklin’s defense against his will.    At most, the
    district court required Shanklin’s counsel to function as standby
    counsel against Shanklin’s wishes, and this did not violate
    Shanklin’s right to represent himself.     See McKaskle v. Wiggins,
    
    465 U.S. 168
    , 184 (1984).
    Shanklin argues that he received ineffective assistance of
    counsel in the district court.   Although Shanklin argued, in
    support of his motion to withdraw guilty plea and his request to
    represent himself, that his counsel had been ineffective, neither
    Shanklin nor his counsel testified under oath regarding
    Shanklin’s ineffective-assistance allegations.    Furthermore, the
    district court did not make any factual findings on the
    allegations.   Because the record is not sufficiently developed
    for this court to consider Shanklin’s ineffective assistance of
    No. 05-51337
    -6-
    counsel claim, we deny the claim without prejudice to Shanklin’s
    right to raise it in a motion to vacate, set aside, or correct
    sentence pursuant to 
    28 U.S.C. § 2255
    .    See United States v.
    Kizzee, 
    150 F.3d 497
    , 502-03 (5th Cir. 1998).   We express no view
    on the merits of such a motion.
    Shanklin raises numerous procedural and substantive
    challenges to his sentencing and the sentence imposed.    Because
    Shanklin did not raise his procedural challenges below, we review
    for plain error.   See United States v. Jones, 
    444 F.3d 430
    , 443
    (5th Cir.), cert. denied, __ S. Ct. __, 
    2006 WL 1523778
     (June 26,
    2006) (No. 05-11153).   Although the district court and the
    Government discussed the terms of the plea agreement at the first
    sentencing hearing, nothing in the record indicates that the
    district court misrepresented the terms of the plea agreement or
    held any incorrect views regarding those terms.   While the
    district court speculated at the second sentencing hearing that
    Shanklin may have money hidden away, it specifically stated that
    this possibility did not factor into its sentencing decision.
    Shanklin does not indicate which disputed matters he asserts the
    district court did not rule upon at sentencing in violation of
    FED. R. CRIM. P. 32(i)(3)(B), and nothing in the record indicates
    that the district court did not rule upon all disputed matters.
    Accordingly, Shanklin has not shown that the district court
    committed error, plain or otherwise, for these reasons.
    No. 05-51337
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    Contrary to Shanklin’s assertion, FED. R. CRIM. P. 32(h)
    requires only that the parties receive reasonable notice that the
    court is considering a departure from the guidelines sentence
    range and the reason for the possible departure, not that written
    notice be provided.   Although the district court did give notice
    that it was considering a sentence above the guidelines range at
    the first sentencing hearing, it arguably did not give notice of
    the specific grounds upon which it was considering imposing such
    a sentence.   However, assuming arguendo that the district court
    violated FED. R. CRIM. P. 32(h), Shanklin has not shown that this
    constituted plain error because he has not demonstrated how the
    lack of sufficient notice prejudiced him or how he would have
    responded differently had he been given proper notice.   See
    Jones, 
    444 F.3d at 443
    .
    Shanklin’s uncontested guidelines sentence range was 15-21
    months of imprisonment and the district court made an upward
    deviation to the statutory maximum of 60 months of imprisonment
    pursuant to the discretion granted to it in United States v.
    Booker, 
    543 U.S. 220
     (2005).   The district court based its upward
    deviation on the following fact-specific reasons: Shanklin’s
    intelligence and his deliberate ignorance regarding the payment
    of taxes; that Shanklin signed false withholding forms under
    penalty of perjury; Shanklin’s failure to show remorse beyond the
    remorse about his pending incarceration; that Shanklin did not
    file tax returns in 2002, 2003, and 2004, even though he was
    No. 05-51337
    -8-
    already under investigation for tax evasion; and that a sentence
    within the guidelines range would be insufficient deterrence
    given the amount of taxes Shanklin failed to pay.   These factors
    were proper to consider as they related to “the nature and
    circumstances of the offense and the history and characteristics
    of the defendant,” the seriousness of the offense, and the need
    to provide adequate deterrence.   
    18 U.S.C. § 3553
    (a)(1),
    (a)(2)(A), and (a)(2)(B); see also United States v. Smith, 
    440 F.3d 704
    , 709 (5th Cir. 2006).
    While the district court did consider Shanklin’s income,
    this was in the context of the amount of taxes Shanklin failed to
    pay and thus was consideration of Shanklin’s offense, not
    impermissible consideration of Shanklin’s socio-economic status,
    a prohibited factor under U.S.S.G. § 5H1.10.   At worst, the
    district court’s language was imprecise, and Shanklin has not
    shown that the district court’s upward deviation was
    impermissibly based upon his socio-economic status.    Cf. United
    States v. Humphrey, 
    104 F.3d 65
    , 71-72 (5th Cir. 1997)
    (commenting about amount of money defendants obtained by fraud
    and their inability to pay restitution did not clearly indicate
    that district court considered socio-economic status of
    defendants).   Shanklin has not shown that the district court’s
    decision to make an upward deviation from the guidelines range
    was unreasonable.   See Smith, 
    440 F.3d at 709
    .
    No. 05-51337
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    This court has recently noted that the extent of a deviation
    is “of no independent consequence.”    
    Id.
     at 709 n.5 (internal
    quotation marks omitted).   Furthermore, given Shanklin’s history
    and characteristics, the seriousness of his offense conduct, and
    the need for deterrence as found by the district court, the
    extent of the deviation was not unreasonable.    See
    
    id.
     (collecting cases); United States v. Reinhart, 
    442 F.3d 857
    ,
    864 (5th Cir. 2006) (upward deviation from 151 months to 235
    months is not presumptively unreasonable).
    By rendering the Sentencing Guidelines advisory only, Booker
    eliminated the Sixth Amendment concerns that prohibited a
    sentencing judge from finding all facts relevant to sentencing.
    United States v. Johnson, 
    445 F.3d 793
    , 797-98 (5th Cir.), cert.
    denied,      S. Ct.   , 
    2006 WL 1584471
     (June 12, 2006) (No. 05-
    10908); Mares, 402 F.3d at 519.    Thus, contrary to Shanklin’s
    assertion, while the district court based Shanklin’s sentence on
    facts not proven to a jury or admitted by Shanklin, this was not
    erroneous.    See Johnson, 
    445 F.3d at 797-98
    .
    Shanklin’s ex post facto argument is without merit.    The
    application of the Sentencing Guidelines as merely advisory does
    not violate the Ex Post Facto Clause, even if the offense conduct
    occurred prior to Booker.    United States v. Scroggins, 
    411 F.3d 572
    , 575-76 (5th Cir. 2005); United States v. Austin, 
    432 F.3d 598
    , 599-600 (5th Cir. 2005).
    No. 05-51337
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    Using Rummel v. Estelle, 
    445 U.S. 263
     (1980), as a
    benchmark, Shanklin’s sentence of 60 months of imprisonment for
    evading more than $400,000 in taxes was not “grossly
    disproportionate.”     See United States v. Gonzales, 
    121 F.3d 928
    ,
    943 (5th Cir. 1997).    Thus, the sentence did not violate the
    Eighth Amendment’s prohibition against cruel and unusual
    punishment.   See Smallwood v. Johnson, 
    73 F.3d 1343
    , 1347 (5th
    Cir. 1996).
    AFFIRMED; MOTION FOR RELEASE PENDING APPEAL DENIED AS MOOT;
    MOTION FOR EXPEDITED CONSIDERATION OF MOTION FOR RELEASE PENDING
    APPEAL DENIED AS MOOT.