United States v. Fassett , 293 F. App'x 196 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4006
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHELLE DAWN FASSETT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:07-cr-00015-HFF-3)
Submitted: September 11, 2008 Decided: September 15, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Leesa
Washington, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michelle Dawn Fassett pleaded guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute five grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 846 (2000), and one count of using and carrying a
firearm during and in relation to, and possessing a firearm in
furtherance of, a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (2000). The district court sentenced her to 168 months of
imprisonment. Fassett timely appealed.
On appeal, counsel filed an Anders* brief, in which he
states there are no meritorious issues for appeal, but questions
whether the district court complied with Fed. R. Crim. P. 11 in
accepting Fassett’s guilty plea. Fassett was advised of her right
to file a pro se supplemental brief, but has not filed a brief.
The Government declined to file a brief. We affirm.
Fassett did not move in the district court to withdraw
her guilty plea, therefore this court reviews her challenge to the
adequacy of the Rule 11 hearing for plain error. See United
States v. Bradley, 455 F.3d 453, 461-62 (4th Cir. 2006). Prior to
accepting a guilty plea, the trial court must ensure the defendant
understands the nature of the charges against her, the mandatory
minimum and maximum sentences, and other various rights, so it is
clear that the defendant is knowingly and voluntarily entering her
*
Anders v. California, 386 U.S. 738 (1967).
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plea. The court must also determine whether there is a factual
basis for the plea. Fed. R. Crim. P. 11(b)(1), (3); United
States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991).
Counsel correctly notes that the district court failed to
advise Fassett that, having entered a plea of not guilty, she had
a right to persist in that plea, as required by Fed. R. Crim. P.
11(b)(1)(B), and that the court did not advise Fassett that the
crimes to which she was pleading guilty were felonies and she would
lose certain civil rights by virtue of her plea. Our review of the
plea hearing transcript also reveals that the district court
mistakenly stated that the maximum punishment for the drug count
was life imprisonment, rather than the correct forty-year statutory
maximum. The plea agreement, which Fassett signed and acknowledged
that she understood, correctly stated the maximum punishments. We
conclude that, although the court erred, these errors do not
prejudice Fassett’s substantial rights, as the court’s Rule 11
colloquy otherwise assured Fassett’s plea was made both knowingly
and voluntarily.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Fassett’s conviction and sentence. This court
requires that counsel inform Fassett, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Fassett requests that a petition be filed, but counsel believes
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that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Fassett.
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
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