United States v. Michael Riley ( 2018 )

FILED
NOT FOR PUBLICATION
DEC 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30134
Plaintiff-Appellee, D.C. No.
2:14-cr-00113-JLR-1
v.
MICHAEL A. RILEY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted December 6, 2018**
Seattle, Washington
Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.
Defendant Michael A. Riley timely appeals his conviction by plea agreement
of one count of possession of methamphetamine with intent to distribute, 21 U.S.C.
§ 841(a)(1); one count of possession of heroin with intent to distribute, id.; and one
count of possession of a firearm in furtherance of a drug trafficking crime, 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
U.S.C. § 924(c). Defendant argues that the district court erred by denying his
motion to set aside his guilty plea. Reviewing for abuse of discretion, United
States v. Mayweather, 634 F.3d 498, 504 (9th Cir. 2010), we affirm.
1. The district court correctly concluded that the plea hearing complied with
Federal Rule of Criminal Procedure 11(b). At the time of the hearing, Defendant
had withdrawn his motion for a determination of competency; Defendant’s lawyer
stated that Defendant was now legally competent; Defendant asserted that he was
not under the effect of any mind-altering drugs or anything else that would affect
his understanding of the proceedings; and Defendant’s conduct at the hearing
strongly suggested competency to stand trial. When Defendant sought to withdraw
his plea, the district court laudably conducted an evidentiary hearing and
permissibly found Defendant’s testimony not credible. Unlike in United States v.
Christensen, 18 F.3d 822, 825 (9th Cir. 1994), Defendant’s "mental or emotional
state" was not "a substantial issue" by the time of the plea hearing.
2. Defendant’s initial lawyer did not misadvise him about the possibility
that a jury could convict him on Count Four, possession of a firearm found in a
locked safe that also contained items directly linked to Defendant, as well as large
quantities of ammunition, drugs, and cash. Those facts, if proved at trial, would
suffice to sustain a conviction. See, e.g., United States v. Norwood, 603 F.3d
21063, 1071–72 (9th Cir. 2010) (holding that the government must "illustrate
through specific facts, which tie the defendant to the firearm, that the firearm was
possessed to advance or promote the criminal activity" (internal quotation marks
omitted)).
3. Defendant’s initial lawyer did not misadvise him about the potential
statutory minimum sentence, if he were convicted on all counts. Count Four
alleged a violation of § 924(c) with three predicate offenses, and Count Seven
alleged a violation of § 924(c) with the same three predicate offenses plus an
additional predicate offense. "[A] defendant may be convicted and sentenced for
multiple violations of § 924(c) so long as each 924(c)(1) count is supported by a
separate predicate offense." United States v. Beltran-Moreno, 556 F.3d 913, 916
(9th Cir. 2009) (internal quotation marks and brackets omitted). "Accordingly, the
government was entitled to charge the defendants with two separate § 924(c)
counts, and, [if a jury had convicted Defendant], the district court [would have
been] required to impose consecutive minimum sentences of five and twenty-five
years on top of the ten-year mandatory minimum that attached to the drug
charges." Id. at 916–17.
AFFIRMED.
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