United States v. Houston , 103 F. App'x 346 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 30 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-7092
(E.D. Okla.)
RONNIE LEE HOUSTON, a/k/a (D.Ct. No. 02-CR-56-S)
Ronald Lee Houston,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Appellant Ronnie Lee Houston, a federal prisoner represented by counsel,
pled guilty to possession of an unregistered firearm in violation of 18 U.S.C. § 2and 26 U.S.C. §§ 5861(d) and 5871. The district court sentenced Mr. Houston to
120-months imprisonment, and this appeal followed.
After Mr. Houston filed a timely notice of appeal, his counsel filed an
appeal brief, pursuant to Anders v. California, 386 U.S. 738, 744 (1967), alleging
that, in his opinion, no meritorious appellate issues exist and requesting an order
permitting him to withdraw as Mr. Houston’s counsel. Consistent with the
dictates of Anders, counsel has nevertheless raised one sentencing issue to
support an appeal, generally asserting the district court erred by not allowing Mr.
Houston to withdraw his guilty plea. Pursuant to Anders, this court gave Mr.
Houston an opportunity to raise points in response to the Anders brief, which he
did by filing a reply brief, raising several appeal issues. See id. Exercising our
jurisdiction under 28 U.S.C. 1291, we affirm Mr. Houston’s conviction and
sentence.
I. Procedural Background
On August 1, 2002, a grand jury indicted Mr. Houston on seven counts,
including: 1) being a felon in possession of a firearm; 2) possession of an
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unregistered firearm; 3) transportation of a stolen motor vehicle (i.e., a
bulldozer); 4) unlawful transportation of stolen vehicles in interstate commerce
(i.e., a backhoe and case dozer); 5) unlawful transportation of a stolen vehicle in
interstate commerce (i.e., a pickup truck); 6) knowingly and wilfully conspiring to
commit the crime of fraud and related activity in connection with access devices,
related to the theft of credit card numbers from stolen receipts; and 7) criminal
forfeiture. Mr. Houston then pled guilty to one count of possession of an
unregistered firearm in exchange for dismissal of the other six counts in the
indictment.
Although represented by counsel, Mr. Houston nevertheless filed pro se
objections to the presentence report, and later a pro se motion to withdraw his
guilty plea. Following a psychiatric examination requested by Mr. Houston and
psychological report finding him competent to stand trial, the district court held a
competency hearing at which time Mr. Houston stipulated he was competent to
stand trial. During the hearing, Mr. Houston made a pro se request for dismissal
of his counsel. The district court then held a hearing on this request together with
Mr. Houston’s motion to withdraw his guilty plea, at which time it granted Mr.
Houston’s motion to dismiss counsel and appointed another public defender to
represent him. The district court then held another hearing on Mr. Houston’s
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motion to withdraw his guilty plea. After hearing arguments from Mr. Houston’s
new counsel, the district court denied the motion. At the sentencing hearing, the
district court overruled Mr. Houston’s pro se objections to the presentencing
report and imposed a 120-month sentence for possession of an unregistered
firearm in violation of 18 U.S.C. § 2 and 26 U.S.C. §§ 5861(d) and 5871.
II. Discussion
Consistent with Anders, Mr. Houston’s counsel raises on issue on appeal:
whether the district court erred in denying Mr. Houston’s pro se motion to
withdraw his guilty plea. Nevertheless, counsel points out Mr. Houston admitted
to knowingly possessing a Herrington Richardson 14-gauge shotgun not registered
to him, and never articulated any “fair or just reason” for withdrawing his guilty
plea. His counsel also suggests granting Mr. Houston’s request to withdraw his
guilty plea would be “unjust and unfair” because he would face an indictment
with six additional counts, resulting in a multi-count conviction warranting a
much greater sentence than the one imposed. After performing a “conscientious
examination of the record” and thorough research of the issue presented, Mr.
Houston’s counsel concludes the appeal lacks merit.
In response, Mr. Houston filed a seventeen-page pro se reply brief listing
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multiple grounds for his appeal. In his primary assertion, he contends the statute
to which he pled guilty, 26 U.S.C. § 5861(d), as well as the act in which it is
contained, the National Firearms Act Amendments of 1968, 26 U.S.C. §§ 5801-
02, 5811-12, 5821-22, 5841-49, 5851-54, 5861, 5871-72, 1 are unconstitutional
because: 1) Congress lacks the “enumerated power to require registration of
firearms”; 2) Section 5861(d) is not a legitimate tax generating statute, but one
simply intended to unfairly punish for possession of a weapon; and 3) Section
5861(d) requires registration of a short-barreled shotgun, which is impossible to
register because it is illegal to own.
Next, Mr. Houston suggests the district court erred in denying his motion to
withdraw his guilty plea, because 1) he was never called to testify at the hearing
on the matter; 2) he twice asserted his innocence to the district court; and 3) his
counsel was ineffective representing him at the district court and now on appeal.
As to his innocence, Mr. Houston claims he asserted it twice when he complained
about counsel stating “I feel he’s already got me found guilty of something I’m
not guilty of yet,” and when at sentencing, he said “I did try to assert my
1
While Mr. Houston refers to the National Firearms Act, we will assume he is
referring to the current amendments to the act passed in 1968, which replaced the original
Act in its entirety.
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innocence on the guns at the time not having knowledge that they were in the
truck.... I didn’t have no knowledge of them guns being in that truck.” With
respect to his ineffective assistance of counsel claim, Mr. Houston contends his
counsel improperly failed to pursue his pro se request for withdrawal of his guilty
plea, both in the district court and now on appeal. Finally, Mr. Houston alleges
his counsel’s “feelings” on whether it is “fair and just” to subject him to a multi-
count indictment are irrelevant and instead, counsel should act as Mr. Houston’s
advocate, which his current counsel failed to do by filing an Anders brief.
We first address Mr. Houston’s primary assertion 26 U.S.C. § 5861(d) and
the 1968 amendments to the National Firearms Act are unconstitutional. We
review de novo constitutional challenges to a statute or an act. United States v.
Parker, 362 F.3d 1279, 1281 (10th Cir. 2004). Mr. Houston fails to establish 26
U.S.C. § 5861(d) and its parent act are beyond Congress’ enumerated power to
either regulate commerce through firearms registration requirements, or impose a
tax thereon. See, e.g., Sonzinsky v. United States, 300 U.S. 506, 512-14 (1937)
(rejecting argument that registration tax on short-barreled shotgun is not true tax,
but a penalty to suppress trafficking of noxious firearms); United States v.
Thompson, 361 F.3d 918, 921 (6th Cir. 2004) (concluding 26 U.S.C. § 5861(d) is
supportable as a legitimate revenue purpose); United States v. Pearson, 8 F.3d
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631, 632-33 (8th Cir. 1993) (holding 26 U.S.C. § 5861(d) represents a valid
exercise of Congress’ commerce clause power). See also United States v. Freed,
401 U.S. 601, 602-03, 605, 608-09 (1971) (upholding registration requirements of
the amended act as not violating the Fifth Amendment and a proper regulatory
measure in the interest of public safety).
Likewise, we reject Mr. Houston’s due process argument 26 U.S.C.
§ 5861(d) unconstitutionally subjects him to a registration requirement for a
firearm which he alleges is illegal to own. We rejected the same argument in
United States v. McCollom, 12 F.3d 968 (10th Cir. 1993), saying:
In Dalton, we held that it was unconstitutional to convict the
defendant under section 5861(d) for possession of an unregistered
machine gun because the government refused to register machine
guns due to the ban on [them], imposed by 18 U.S.C. § 922(o)....
Thus, a separate criminal statute prohibiting possession of the
weapon made registration a literal and legal impossibility....
....
The distinguishing feature between the short-barreled shotgun in this
case and the machine gun in Dalton is that there is no statutory ban
on the registration of short-barreled shotguns.
....
Even if it is unlikely that the firearm would have been accepted for
registration, the defendant has cited no statute which makes the
possession of short-barreled shotguns illegal.... Different from
Dalton, the registration of this weapon was not a legal impossibility.
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Id. at 970-71 (quotation marks and citations omitted). Accord United States v.
Shepardson, 167 F.3d 120, 123-24 (2d Cir. 1999) (following McCollom and
holding “lack of any statutory ban on the registration of sawed-off shotguns is
sufficient evidence of the possibility of registration to satisfy due process”). For
the same reasons here, Mr. Houston’s claim fails.
Next, we address Mr. Houston’s claim the district court erred in dismissing
his motion to withdraw his guilty plea, because he was never called to testify at
the hearing on the matter, twice asserted his innocence, and received ineffective
assistance of counsel. We review the district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion, and will not reverse the denial of
such a motion unless the defendant can show the district court acted unjustly or
unfairly. See United States v. Carr, 80 F.3d 413, 419 (10th Cir. 1996). It is the
defendant’s burden to establish “a fair and just reason” for withdrawal of the plea,
and in determining whether the defendant has met this burden, the following
factors are considered: 1) whether the defendant asserted his innocence; 2)
prejudice to the government; 3) delay in filing the motion to withdraw; 4)
inconvenience to the court; 5) assistance of counsel; 6) whether the plea is
knowing and voluntary; and 7) waste of judicial resources. See United States v.
Black, 201 F.3d 1296, 1299-3000 (10th Cir. 2000); United States v. Gordon, 4
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F.3d 1567, 1572 (10th Cir. 1993).
In considering Mr. Houston’s pro se motion to withdraw his guilty plea, the
district court heard from both his counsel on the matter at three separate hearings.
Both counsel, familiar with any inculpatory evidence against Mr. Houston,
pointed out withdrawal of his guilty plea would not serve his best interests and
could instead subject him to multiple criminal counts and a much greater
sentence. After considering counsels’ concerns, the district court also expressly
considered and weighed all the required factors in determining whether Mr.
Houston met his burden of establishing “a fair and just reason” for withdrawal of
the plea. In favor of granting the motion, the district court found Mr. Houston did
not delay in filing his motion, and a withdrawal of his guilty plea would not
unduly prejudice the government, inconvenience the court, or waste judicial
resources. Nevertheless, the district court found Mr. Houston never asserted his
innocence, his guilty plea was “obviously knowing and voluntary,” and he
received effective assistance of counsel because both his attorneys served as
“very capable trial lawyers who are among the best to defend individuals ... in
criminal cases.” Weighing these three factors against the others, the district court
denied Mr. Houston’s motion to withdraw his guilty plea.
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Having reviewed the record, and applying the applicable law and standard
of review, we conclude the district court did not abuse its discretion in denying
Mr. Houston’s motion to withdraw his guilty plea. First, we note one of Mr.
Houston’s assertions of “innocence” came only at sentencing, long after the
hearings on and resolution of his motion to withdraw his plea. We note the other
assertion, when he stated “I feel he’s already got me found guilty of something
I’m not guilty of yet,” pertained to complaints about his counsel.
However, even if we assume Mr. Houston sufficiently declared his
innocence, the district court nevertheless determined his knowing and voluntary
guilty plea and the effectiveness of his counsel weighed in favor of denying his
motion. We agree. First, our review of the record establishes his guilty plea was
patently knowing, voluntary, and intelligent, and as his counsel points out, Mr.
Houston admitted committing the crime for which he was convicted, in
contradiction of his later assertion of innocence.
Next, we reject Mr. Houston’s claim of ineffective assistance of counsel of
both attorneys who represented him. Because “the two-part Strickland v.
Washington test applies to challenges to guilty pleas based on ineffective
assistance of counsel,” Hill v. Lockhart, 474 U.S. 52, 58 (1985), it follows the
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same test applies to a counsel’s representation on a motion to withdraw a guilty
plea. Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant
asserting ineffective assistance of counsel must show both that counsel’s
performance was deficient and the deficient performance prejudiced the defense.
To satisfy the performance test of Strickland, the defendant must show his
counsel’s representation fell below an objective standard of reasonableness, and
thereby, “overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 688-89 (quotation marks
and citation omitted).
At the hearing where he pled guilty, Mr. Houston expressed satisfaction
with his first attorney who represented him during his plea agreement. Nothing in
the record suggests his first attorney acted ineffectively, and the district court
only dismissed him at a subsequent hearing after Mr. Houston expressed
dissatisfaction with him based on “irreconcilable differences,” primarily centered
on Mr. Houston’s disagreement with his attorney’s advice Mr. Houston should not
withdraw his guilty plea because his criminal history could taint the jury’s
opinion of him; he would face multiple counts, resulting in a much stiffer
sentence under the guidelines; and the likelihood he would lose a sentence
reduction for acceptance of responsibility. Like Mr. Houston’s initial counsel, his
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next and current counsel similarly recognized the sound trial strategy of advising
his client to proceed with his guilty plea to one count of the indictment, rather
than risk a conviction on multiple counts and an increased sentence. We cannot
say either counsel acted ineffectively in advising Mr. Houston and later the court,
of the risks of withdrawing his guilty plea. As to Mr. Houston’s charge his
current counsel failed to act as his advocate by filing an Anders brief, it is clear
his counsel did so under the strictures of Anders and a perceived responsibility to
do what was in the best interest of his client. For these reasons, Mr. Houston has
not shown counsels’ performance was deficient.
Although it is not an enumerated factor we consider in reviewing a request
to withdraw a guilty plea, we nevertheless have considered and rejected Mr.
Houston’s assertion the district court erred in denying his motion because he was
never called to testify at the hearing on withdrawal of his guilty plea. Even
though Mr. Houston did not testify or speak at the second hearing on his motion
to withdraw his plea, a review of the record shows Mr. Houston testified at an
initial hearing on the same motion. On appeal, he fails to show he requested an
opportunity to address the court at the latter hearing or explain what additional
testimony he would have offered at that time to support his motion. Moreover,
given his prolific pro se requests during the course of the proceedings, and the
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district court’s attentive response to those requests, Mr. Houston has not shown
anything prevented him from requesting the opportunity to speak at the final
hearing on his motion to withdraw his plea. For these reasons, we find his failure
to testify unpersuasive in establishing the district court abused its discretion in
denying his motion to withdraw his guilty plea.
After considering all the factors relevant to a motion to withdraw a guilty
plea, taken together with counsel’s well-reasoned Anders argument that granting
Mr. Houston’s motion would subject him to six additional, serious felony counts
and a greater sentence, we are persuaded the district court did not abuse its
discretion in denying Mr. Houston’s motion to withdraw his plea.
III. Conclusion
After a careful review of the record on appeal, we grant counsel’s request
to withdraw and AFFIRM Mr. Houston’s conviction and sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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