United States v. Thompson ( 1997 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 96-4479
    RODNEY EUGENE THOMPSON,
    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-95-310)
    Submitted: January 23, 1997
    Decided: February 10, 1997
    Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
    North Carolina, for Appellant. Walter C. Holton, Jr., United States
    Attorney, Lisa B. Boggs, Assistant United States Attorney, Greens-
    boro, North Carolina, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Rodney Eugene Thompson pled guilty to a one-count indictment
    which charged him with possessing a firearm after being convicted of
    a felony, 
    18 U.S.C. § 922
    (g)(1) (1994), and violating the armed career
    criminal statute, 
    18 U.S.C. § 924
    (e) (1994). The district court de-
    parted downward for substantial assistance on the government's
    motion and imposed a sentence of 209 months. Thompson's attorney
    has filed a brief in accordance with Anders v. California, 
    386 U.S. 738
     (1967), questioning the district court's denial of an adjustment for
    acceptance of responsibility, USSG § 3E1.1,* but stating that, in his
    view, there are no meritorious issues for appeal. Thompson has filed
    a pro se supplemental brief raising three issues. Finding no reversible
    error, we affirm the conviction and sentence.
    The only contested issue at Thompson's sentencing was acceptance
    of responsibility. Two police officers testified that Thompson pointed
    a .357 revolver at one of the officers during a reverse sting drug deal.
    The probation officer testified that Thompson denied knowing there
    was a weapon in the car although he had previously told the court at
    his change of plea hearing that he knew the gun was in the car. At the
    sentencing hearing, Thompson said he had borrowed the car he was
    driving and saw the gun between the seats, but did not touch it. The
    district court found that Thompson had been "less than candid" and
    had not earned the adjustment. The record demonstrates that Thomp-
    son changed his story a number of times after his arrest when he per-
    ceived some benefit in doing so. Section 3E1.1 calls for truthful
    admission of criminal conduct. The district court did not clearly err
    in denying the adjustment in this case.
    In his pro se brief, Thompson challenges his § 924(e) sentence. He
    suggests that his 1977 conviction for breaking and entering may have
    been unconstitutionally obtained because the state court record did
    not show that he was represented by counsel. Because this issue was
    not raised in the district court, we review it for plain error. United
    _________________________________________________________________
    *United States Sentencing Commission, Guidelines Manual (Nov.
    1995).
    2
    States v. Olano, 
    507 U.S. 725
    , 734 (1993). At sentencing, a defendant
    may challenge the validity of a prior conviction only on the ground
    that it was obtained in violation of the right to counsel. Custis v.
    United States, 
    511 U.S. 485
    , 497 (1994). Thompson does not assert
    here that he actually was denied the right to counsel, only that the
    record does not establish whether he was respresented. Consequently,
    we find that the district court did not commit plain error in finding
    that Thompson had the requisite predicate convictions and was an
    armed career criminal.
    Thompson also claims that the enhanced sentence was not part of
    his plea agreement. However, we note that the government had
    already filed notice to seek an enhanced sentence when Thompson
    signed the plea agreement, and the agreement stated that Thompson
    faced a statutory penalty of not less than fifteen years for the offense
    charged in the indictment. That fact was also brought out at the
    change of plea hearing.
    Finally, Thompson contends that the district court erred in accept-
    ing his guilty plea before the presentence report had been prepared.
    Under Rule 11 of the Federal Rules of Criminal Procedure, the court
    is not required to defer acceptance of a plea or a plea agreement. Con-
    sequently, the district court did not plainly err in accepting Thomp-
    son's guilty plea at the Rule 11 hearing. However, the sentencing
    guidelines direct the court to defer acceptance of the agreement and
    any nonbinding recommendations. See USSG§ 6B1.1(c), p.s. We
    previously recognized but did not resolve the conflict in United States
    v. Ewing, 
    957 F.2d 115
    , 119 (4th Cir.), cert. denied, 
    505 U.S. 1210
    (1992). Here, the court carefully explained to Thompson that his sen-
    tence, including any adjustments, would be determined by the court
    after preparation of the presentence report and that any recommenda-
    tions by the government were not binding. Thompson specifically
    questioned the court on this point and consulted with his attorney
    before deciding to enter his guilty plea. While the court did not state
    that it was deferring acceptance of the plea agreement, it complied
    substantially with USSG § 6B1.1(c).
    In accordance with Anders, we have examined the entire record in
    this case and find no meritorious issues for appeal. Accordingly, the
    conviction and sentence are affirmed. This court requires that counsel
    3
    inform his client, in writing, of his right to petition the Supreme Court
    of the United States for further review. Counsel's motion to withdraw
    is therefore denied at this time. If the client requests that a petition be
    filed, but counsel believes that such a petition would be frivolous,
    then counsel may again 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 conten-
    tions are adequately presented in the record and briefs, and oral argu-
    ment would not aid the decisional process.
    AFFIRMED
    4
    

Document Info

Docket Number: 96-4479

Filed Date: 2/10/1997

Precedential Status: Non-Precedential

Modified Date: 10/30/2014