United States v. Felder ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4858
CARL RICHARD FELDER, JR., a/k/a
Rab,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4922
CARL RICHARD FELDER, JR., a/k/a
Rab,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-99-751)
Submitted: October 22, 2003
Decided: April 6, 2004
Before LUTTIG, MOTZ, and KING, Circuit Judges.
No. 02-4858, Affirmed in part, vacated in part, and remanded, No.
02-4922, Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. FELDER
COUNSEL
Jessica Salvini, SALVINI & BENNETT, L.L.C., Pickens, South Car-
olina, for Appellant. J. Strom Thurmond, Jr., United States Attorney,
Miller W. Shealy, Jr., Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Carl Richard Felder appeals his conviction and 240 month sentence
imposed upon his guilty plea to one count of conspiracy to possess
with intent to distribute cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2000). He also appeals the district court’s denial
of his motion to reconsider his sentence. On appeal, Felder’s counsel
raises two issues: (1) whether the district court abused its discretion
when it denied Felder’s motion to withdraw his guilty plea, and (2)
whether the district court conducted a proper Rule 11 hearing. See
Fed. R. Crim. P. 11. Felder’s first supplemental pro se brief raises
three additional issues: (1) whether the indictment was defective;
(2) whether the district court had jurisdiction to sentence Felder under
21 U.S.C. §§ 841(a)(1), 846; and (3) whether the district court warned
Felder of a mandatory minimum sentence during the Rule 11 hearing.
Finally, Felder’s second supplemental brief asserts that the district
court erred in determining the drug quantity attributable to him and
further erred by sentencing him as a career offender under United
States Sentencing Guidelines Manual § 4B1.1 (2002).
Felder’s first contention on appeal is that the district court abused
its discretion when it denied his pro se motion to withdraw his guilty
plea. The district court’s denial of a motion to withdraw a guilty plea
is reviewed for abuse of discretion. United States v. Ubakanma, 215
UNITED STATES v. FELDER 3
F.3d 421, 424 (4th Cir. 2000). A defendant does not have an absolute
right to withdraw a guilty plea. United States v. Moore, 931 F.2d 245,
248 (4th Cir. 1991). Rather, a defendant bears the burden of demon-
strating that a "fair and just reason" supports his request to withdraw
his plea. Id. Factors considered in determining whether a defendant
has shown a fair and just reason for withdrawing his guilty plea
include: (1) whether the defendant has offered credible evidence that
the plea was not knowing or voluntary; (2) whether the defendant has
credibly asserted his legal innocence; (3) whether there has been a
delay between the entering of the plea and the motion to withdraw;
(4) whether the defendant had close assistance of competent counsel;
(5) whether withdrawal will prejudice the government; and finally, (6)
whether withdrawing the guilty plea will inconvenience the court and
waste judicial resources. Id. Because all six of the Moore factors
weigh against Felder, we conclude that the district court did not abuse
its discretion in denying Felder’s motion to withdraw his guilty plea.
Felder contends the court violated Rule 11(c)(3)(B) by failing to
advise him that he would be unable to withdraw his plea if the court
did not accept the sentencing recommendations contained in his plea
agreement. This court closely scrutinizes the Rule 11 colloquy and
has emphasized that an appropriately conducted guilty plea proceed-
ing raises a strong presumption that the plea is final and binding.
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
Felder’s challenge to the adequacy of the Rule 11 hearing is not sup-
ported by the record. Accordingly, we conclude the district court con-
ducted a proper Rule 11 hearing.
Felder has also appealed the district court’s denial of his motion to
reconsider his sentence. Because Felder has failed to raise any argu-
ments in his brief regarding the denial of his motion to reconsider his
sentence, the review of that issue is waived. See Canady v. Crestar
Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir. 1997)(holding issues
raised in notice of appeal but not briefed are deemed waived).
Next, Felder asserts his indictment was defective because it did not
state the date of his alleged crime with specificity and failed to give
him notice of the exact crime for which he was being charged. In
order for an indictment to be valid, it must: "(1) allege the essential
facts constituting the offense; (2) allege each element of the offense,
4 UNITED STATES v. FELDER
so that fair notice is provided; and (3) be sufficiently distinctive that
a verdict will bar a second prosecution for the same offense." United
States v. Bolden, 325 F.3d 471, 490 (4th Cir. 2003). A review of the
indictment demonstrates that Count One of the superceding indict-
ment meets the criteria enumerated in Bolden.
Felder also asserts that the district court lacked jurisdiction to con-
vict and sentence him under 21 U.S.C. §§ 841(a), 846, because his
indictment did not specify the drug quantities for which he would be
liable. Such claims are cognizable under Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). However, Felder cannot establish an Apprendi
error because his 240 month sentence did not exceed the statutory
maximum penalty for these offenses set forth in § 841. United States
v. Kinter, 235 F.3d 192, 199-202 (4th Cir. 2000); see also United
States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001). Accordingly, we
reject Felder’s challenges to his indictment. Similarly, we reject
Felder’s Apprendi based challenges to the court’s calculation of drugs
attributable to him.
Felder next avers the district court erred during the Rule 11 hearing
by failing to inform him of the statutory minimum sentence applicable
to his case. Felder alleges that he was subject to a five year minimum
sentence, but that the district court wrongly informed him at his plea
hearing that there was no mandatory minimum sentence. Because a
drug quantity was not charged in the indictment, the sentencing provi-
sion in § 841(b)(1)(C) is applicable. United States v. Promise, 255
F.3d 150, 152 (4th Cir. 2001). Section 841(b)(1)(C) has no mandatory
minimum sentence. Therefore, the district court’s statement at the
Rule 11 hearing that there was no mandatory minimum sentence was
correct, and this claim is meritless.
Finally, Felder challenges the district court’s finding that he quali-
fied as a career offender under USSG § 4B1.1. Felder contends the
court erred by finding that his prior state conviction for aggravated
assault and battery constituted a "crime of violence" within the mean-
ing of USSG § 4B1.2(a). Because Felder did not raise this objection
below, we review it for plain error, requiring Felder to demonstrate
error that is plain, affects substantial rights, and seriously affects the
fairness, integrity or public reputation of judicial proceedings. See
United States v. Olano, 507 U.S. 725, 731-32, 736-37 (1993).
UNITED STATES v. FELDER 5
Because Felder’s conviction was for aggravated assault, it qualifies as
a crime of violence under the career offender guideline. See United
States v. Dickerson, 77 F.3d 774, 776 (4th Cir. 1996). Thus, we find
no error.
Felder also contends that the court improperly counted several state
convictions for simple drug possession as controlled substance
offenses under USSG § 4B1.2(b). Felder attempted to object to such
inclusion at his sentencing hearing. We have held that simple posses-
sion does not qualify as a controlled substance offense under the
career offender guideline. See United States v. Neal, 27 F.3d 90, 92
(4th Cir. 1994). The sentencing transcript reflects that the court relied
on at least two simple possession offenses in finding that Felder quali-
fied as a career offender. This runs afoul of Neal.
The record, however, does not clearly demonstrate whether one of
the drug offenses the court relied on, specifically, Felder’s conviction
in South Carolina from July 1992, amounted to mere possession of
crack or possession of crack for distribution. The Presentence Report
reflects the latter, but Felder objected to the characterization of this
offense as a controlled substance offense at sentencing, specifically
contending that while he was charged with this offense he ultimately
pled guilty to simple possession. Apparently based on its belief that
simple possession was sufficient to qualify as a controlled substance
offense, the court did not resolve the discrepancy, but overruled
Felder’s objection on the ground of irrelevancy. We note that Felder
has attached to his supplemental brief documentation purportedly
from the United States Department of Justice that appears to support
his assertion that he was ultimately convicted of mere possession. In
light of the ambiguity regarding the proper characterization of
Felder’s July 1992 conviction involving the possession of crack, and
the fact that the record reveals only one other potentially qualifying
predicate offense under the career offender guideline, we vacate the
district court’s judgment and remand for reconsideration of whether
Felder qualifies as a career offender and, if not, for resentencing.
Accordingly, we grant Felder’s motions to file supplemental briefs,
but we reject the arguments raised therein, except Felder’s conten-
tions regarding the use of simple possession offenses against him in
determining his career offender status. We affirm the district court’s
denial of Felder’s motion to reconsider his sentence. We deny
6 UNITED STATES v. FELDER
Felder’s motion for an en banc hearing. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
No. 02-4858 — AFFIRMED IN PART, VACATED IN PART
AND REMANDED,
No. 02-4922 — AFFIRMED