United States v. Monti Bellamy , 473 F. App'x 242 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5067
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTI N. BELLAMY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-00271-RBH-1)
Submitted: April 20, 2012 Decided: May 10, 2012
Before KING, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monti N. Bellamy appeals his 180-month sentence and
conviction following a guilty plea to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924
(2006). Bellamy’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that he could
identify no meritorious issues for appeal, but questioning:
(1) whether the district court fully complied with Fed. R. Crim.
P. 11 in accepting Bellamy’s guilty plea; and (2) whether the
district court erred in sentencing Bellamy as an armed career
criminal, as his prior felony drug convictions were neither pled
in the indictment nor proven to a jury beyond a reasonable
doubt. Bellamy was informed of his right to file a pro se
supplemental brief, but has not done so. The Government
declined to file a responsive brief. We affirm the district
court’s judgment.
We first address Bellamy’s challenge to his
conviction. Federal Rule of Criminal Procedure 11 requires a
trial court, prior to accepting a guilty plea, to conduct a plea
colloquy in which the court informs the defendant of, and
determines that the defendant comprehends, the nature of the
charges to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty he faces, and the rights
he is relinquishing by pleading guilty. United States v.
2
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Additionally, the
district court must ensure that the defendant’s plea was
voluntary and did not result from force, threats, or promises
not contained in the plea agreement. Fed. R. Crim. P. 11(b)(2).
Because Bellamy did not move to withdraw his guilty
plea in the district court or raise any objections to the Rule
11 colloquy, we review the colloquy for plain error. United
States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To
demonstrate plain error, a defendant must show that: (1) there
was an error; (2) the error was plain; and (3) the error
affected his “substantial rights.” United States v. Olano, 507
U.S. 725, 732 (1993). To establish that a Rule 11 error has
affected a defendant’s substantial rights, the defendant “must
show a reasonable probability that, but for the error, he would
not have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004). After reviewing the transcript of the
plea colloquy, we conclude that the district court fully
complied with Rule 11 in accepting Bellamy’s guilty plea.
We now turn to Bellamy’s challenge to his sentence.
Whether a prior conviction qualifies as a predicate offense
under the Armed Career Criminal Act is a question of statutory
interpretation that we review de novo. United States v. Harcum,
587 F.3d 219, 222 (4th Cir. 2009). Although counsel for Bellamy
asserts that the district court erroneously sentenced Bellamy as
3
an armed career criminal because the Government failed to prove
his prior felony drug convictions beyond a reasonable doubt,
this argument is foreclosed by binding Supreme Court and Fourth
Circuit precedent. In Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), the Supreme Court held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” (emphasis
added). Moreover, we have consistently found that “the Sixth
Amendment (as well as due process) does not demand that the mere
fact of a prior conviction used as a basis for a sentencing
enhancement be pleaded in an indictment and submitted to a jury
for proof beyond a reasonable doubt.” United States v. Cheek,
415 F.3d 349, 352 (4th Cir. 2005). Accordingly, the district
court did not err in sentencing Bellamy as an armed career
criminal.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm the district court’s judgment. This Court requires that
counsel inform Bellamy, in writing, of his right to petition the
Supreme Court of the United States for further review. If
Bellamy requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this Court for leave to withdraw from representation. Counsel’s
4
motion must state that a copy thereof was served on Bellamy. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED
5