United States v. Jamie Eldred Black ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11047
Non-Argument Calendar
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D.C. Docket No. 3:14-cr-00056-CAR-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMIE ELDRED BLACK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(April 13, 2017)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jamie Eldred Black appeals his convictions for interstate travel in aid of
racketeering enterprises, in violation of 18 U.S.C. § 1952(a)(3). Black argues: (1)
for the first time, that the district court did not comply with Fed. R. Crim. P. 11 and
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that his guilty plea was not knowing and voluntary due to his mental health at the
time of the change-of-plea hearing; and (2) that his counsel was ineffective for
allowing him to enter a plea that was not knowing and voluntary or supported by
the facts, for failing to object to his two-level enhancement pursuant to U.S.S.G. §
2D1.1(b)(1), for failing to object to his consecutively imposed sentences, and for
failing to file a sentencing memorandum. After careful review, we affirm.
First, we are not persuaded by Black’s claim that the district court plainly
erred at his change-of-plea hearing. If a defendant does not object to the plea
proceedings, nor move to withdraw the plea, we review the district court’s
compliance with Rule 11 for plain error. United States v. Quinones, 97 F.3d 473,
475 (11th Cir. 1996), abrogated on other grounds by United States v. Vonn, 535
U.S. 55 (2002). To show plain error, a defendant must establish that: (1) there was
error; (2) that was plain; and (3) that affected his substantial rights. United States
v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If all three conditions are met,
we may exercise our discretion to notice the error, but only if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id. “An
error is plain if it is obvious and clear under current law.” United States v.
Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006). A defendant who seeks reversal of
his conviction after a guilty plea, claiming the district court committed plain error
under Rule 11, must show a reasonable probability that, absent the error, he would
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not have pleaded guilty. United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004).
Under Rule 11, a district court must address a defendant personally in open
court and inform him of, and ensure that he understands the nature of the charge to
which the plea is offered and the potential consequences of that plea. United States
v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997). To determine whether a guilty
plea is knowing and voluntary, a court accepting a guilty plea must comply with
Rule 11 by ensuring that: (1) the guilty plea is free from coercion; (2) the
defendant understands the nature of the charges; and (3) the defendant understands
the direct consequences of his plea. United States v. Jones, 143 F.3d 1417, 1418-
19 (11th Cir. 1998). We review the whole record to determine whether these
concerns were satisfied. United States v. Moriarty, 429 F.3d 1012, 1020 n.4 (11th
Cir. 2005). There is a strong presumption that statements made during a plea
colloquy are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
Under Rule 11, before a court can accept a guilty plea, it must inform the
defendant of: (1) the right to plead not guilty; (2) the right to a jury trial; (3) the
right to be represented by counsel at every stage of the proceedings; (4) the right to
confront and cross-examine adverse witnesses; (5) the right to testify and compel
the attendance of witnesses; (6) the right against compelled self-incrimination; (7)
the nature of each charge to which the defendant is pleading guilty; (8) the
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maximum and minimum penalties possible by law, including fines, supervised
release, and special assessments; (9) the possibility of restitution and any
applicable forfeiture; and (10) the court’s obligation to calculate the guideline
range and consider any possible departures under the Sentencing Guidelines. See
Fed. R. Crim. P. 11(b)(1)(B)-(E), (G)-(M). The district court must also explain
that a guilty plea waives the defendant’s trial rights. Fed. R. Crim. P. 11(b)(1)(F).
Before entering a judgment on a guilty plea, the district court must first
“determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).
“The standard for evaluating challenges to the factual basis for a guilty plea is
whether the trial court was presented with evidence from which it could reasonably
find that the defendant was guilty.” United States v. Frye, 402 F.3d 1123, 1128
(11th Cir. 2005) (quotations omitted).
Here, the district court did not plainly err in complying with Rule 11 and
ensuring that Black’s guilty plea was knowing and voluntary. As the record
shows, the district court advised Black at the outset of the change-of-plea hearing
of the rights he would be waiving. To the extent Black argues that the district
court was required to re-advise him of the rights he would be waiving following
the recess in which he agreed to a different plea deal, there is no binding precedent
requiring the district court to do so. Therefore, any alleged error could not be
plain. See Eckhardt, 466 F.3d at 948.
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Moreover, the district court did not err, plainly or otherwise, in ensuring that
a factual basis for the plea existed. The government recited from a plea agreement
in which Black agreed he had traveled from South Carolina to Georgia on two
separate occasions where he purchased methamphetamine and then returned to
South Carolina with the drugs. See Frye, 402 F.3d at 1128. While Black now
claims he was unaware that he was being held responsible for more than 157 grams
of “ice,” Black admitted at the plea hearing that he agreed with the government’s
factual statement that he was responsible for “219.1 grams of d-methamphetamine
hydrochloride with 96.7% purity, aka, 210.9 grams of ‘ice.’” We presume that
statements made during a plea colloquy are true. See Medlock, 12 F.3d at 187.
It is also clear from our review of the record that the plea colloquy satisfied
the three core concerns of Rule 11. See Monroe, 353 F.3d at 1354; Jones, 143 F.3d
at 1418-19. As for the first concern, the district court confirmed with Black that he
was pleading guilty of his own free will and no one had forced, scared, or tricked
him into pleading guilty. After the government amended the superseding
information, the district court again confirmed with Black that no one had made
any other promises or assurances of any kind to get Black to plead guilty. As for
the second concern, the district court confirmed that Black had gone over the
amended superseding information, understood what was contained in the
information, had a full opportunity to review the new plea agreement, understood
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the terms of the plea agreement, and understood and agreed with the facts as
outlined by the government. And, as for the third concern, the district court
advised Black that, by pleading guilty, he was waiving his right to plead not guilty
to any offense charged against him, his right to a jury trial, his right to be presumed
innocent at trial, his right to have the government prove his guilt beyond a
reasonable doubt, his right to not testify at trial, his right to an attorney at every
stage of the case, his right to cross-examine all witnesses who testified against him,
his right to present evidence and compel the attendance of witnesses by subpoena,
and his right to appeal any guilty verdict.
Next, we are unconvinced by Black’s assertion that he did not have a full
understanding of the nature of the charges or the consequences of his plea. Rather,
the record shows that Black was examined by a psychiatrist who concluded that
Black was not suffering from a mental disease or defect and was able to understand
the nature and consequences of the proceedings against him and his testimony
during the plea colloquy. Black’s testimony during the plea colloquy further
indicated that he understood the proceedings. Black testified that, although he had
a history of Tourette syndrome and drug abuse, it did not affect his ability to
understand the proceedings. In addition, Black asked several questions throughout
the proceedings that indicated he had a full understanding of what he was pleading
to and the consequences of his plea, including objecting to the date of the offense
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as contained in the first superseding information and asking whether he would be
awarded an acceptance of responsibility reduction or a downward departure during
sentencing. On this record, we cannot say that the district court plainly erred in
ensuring that Black’s guilty plea was knowing and voluntary.
Finally, we deny relief on Black’s claims that his counsel was ineffective.
When reviewing an ineffective assistance of counsel claim on direct appeal, we do
so de novo. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003) (noting
that ineffective assistance of counsel claims are a mixed question of law and fact).
To sustain a claim for ineffective assistance of counsel, the defendant must
show that: (1) counsel’s performance was deficient; and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Counsel’s performance is deficient only if it falls below an objective
standard of reasonableness under prevailing professional norms. Id. at 688.
Prejudice is a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. To establish
prejudice in the context of a guilty plea, the defendant must show that “there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). If the defendant makes an insufficient showing on one prong, we need not
address the other prong. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
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“[I]t is settled law in this circuit that a claim of ineffective assistance of
counsel cannot be considered on direct appeal if the claims were not first raised
before the district court and if there has been no opportunity to develop a record of
evidence relevant to the merits of the claim.” United States v. Franklin, 694 F.3d
1, 8 (11th Cir. 2012) (quotation omitted). The preferred means for deciding an
ineffectiveness claim is through a 28 U.S.C. § 2255 motion even if the record
contains some indication of deficiencies in counsel’s performance. United States
v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010). However, if the record is
sufficiently developed, we will consider this kind of claim on direct appeal. Id.
Under the Sentencing Guidelines, a defendant’s offense level increases by
two levels if a dangerous weapon was possessed. U.S.S.G. § 2D1.1(b)(1). “The
enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. §
2D1.1(b)(1), cmt. n.11(A). To justify a firearm enhancement, the government
must establish by a preponderance of the evidence either that: (1) the firearm was
present at the site of the charged conduct, or (2) the defendant possessed a firearm
during conduct associated with the offense of conviction. United States v.
Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). If the government meets its
burden, then the burden shifts to the defendant to show that a connection between
the weapon and the offense was clearly improbable. Id.
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Under the Guidelines, “[i]f the sentence imposed on the count carrying the
highest statutory maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively, but only to the
extent necessary to produce a combined sentence equal to the total punishment.”
U.S.S.G § 5G1.2(d). We have interpreted § 5G1.2(d) of the Sentencing Guidelines
as calling for multiple sentences to be served consecutively if the sentence called
for by the Guidelines is longer than the sentence authorized for any individual
count of conviction. See United States v. Pressley, 345 F.3d 1205, 1213 (11th Cir.
2003) (interpreting § 5G1.2(d) under the then-mandatory Sentencing Guidelines);
see also United States v. Sarras, 575 F.3d 1191, 1209 n.22 (11th Cir. 2009)
(concluding that, under the advisory Sentencing Guidelines, the district court is
still required to properly calculate the guidelines range pursuant to § 5G1.2(d)).
Here, the record is not sufficiently developed for us to consider whether
Black’s counsel was ineffective for allowing Black to enter into a guilty plea.
Although Black and his counsel briefly testified at the sentencing hearing about
Black’s allegations against his counsel, his counsel did not testify about what he’d
advised Black during the recesses of the change-of-plea hearing. Further, the
district court did not hold a formal evidentiary hearing on this issue, or make any
findings about his counsel’s representation. Thus, the brief statements by Black
and his counsel did not sufficiently develop the record for this claim.
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Similarly, the record is not sufficiently developed for us to consider whether
Black’s counsel was ineffective for failing to file a sentencing memorandum
addressing the § 3553(a) factors. Because there is no testimony from Black’s
counsel about why he made the decision not to file a sentencing memorandum
addressing the § 3553(a) factors, we can only speculate about counsel’s motives.
Nor is the record sufficiently developed to address Black’s claim that his
counsel was ineffective for failing to object to his two-level enhancement pursuant
to U.S.S.G. § 2D1.1(b)(1). See id. According to the undisputed facts of the
presentence investigation report (“PSI”) , a BB gun was discovered under the seat
that Black occupied in the truck that also contained marijuana and
methamphetamine. The BB gun was discovered on April 11, 2014, during an
offense that was not charged in the amended superseding information, and Black
objected during his plea colloquy that he did not know his co-defendant was
trafficking drugs on April 11, 2014. Accordingly, it is not clear that the April 11,
2014, conduct was part of the same course of conduct as his counts of conviction,
and that an objection by his counsel to the two-level enhancement would have been
without merit. Moreover, there is no testimony in the record as to why counsel
failed to raise this objection. Therefore, this claim would be better resolved
through a § 2255 motion. See Patterson, 595 F.3d at 1328.
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Nevertheless, the record is sufficiently developed to address Black’s claim
that his counsel was ineffective for failing to object that his sentences should not
run consecutively under § 5G1.2. See Franklin, 694 F.3d at 8. As the record
reveals, the district court determined that Black’s guideline range sentence was 108
to 135 months. Because Black’s guideline range sentence was longer than the 60-
month sentence authorized for one individual count of conviction, § 5G1.2 called
for consecutive sentences as to Counts 1 and 2. See Pressley, 345 F.3d at 1213.
Accordingly, Black was not prejudiced by his counsel’s failure to argue that the
counts should run concurrently, pursuant to § 5G1.2, and we reject this particular
ineffectiveness claim. See Strickland, 466 U.S. at 688.
AFFIRMED.
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