United States v. Vinson ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4906
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE VINSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:06-cr-01170-CMC-1)
Submitted: July 29, 2009 Decided: August 13, 2009
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicole N. Mace, THE MACE FIRM, Myrtle Beach, South Carolina, for
Appellant. W. Walter Wilkins, United States Attorney, Robert C.
Jendron, Jr., Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne Vinson pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), (e) (2006). The district court found that Vinson had
at least three prior felonies under the Armed Career Criminal
Act (“ACCA”), § 924(e), and sentenced him to 210 months in
prison. * Vinson now appeals, raising several issues related to
his predicate offenses under § 924(e). On appeal, he also
claims that one of his prior convictions for possession with
intent to distribute was obtained in violation of his Sixth
Amendment right to counsel, and also that the district court
should have allowed him to withdraw his guilty plea. After
reviewing Vinson’s claims, we affirm his conviction and deny his
motion to file a supplemental, pro se brief.
We deal first with Vinson’s claim that his two prior
convictions for possession with intent to distribute cocaine do
not qualify as serious drug offenses under the ACCA. An offense
under state law is a “serious drug offense” if it “involv[es]
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as defined in
*
Vinson’s sentencing range under the federal Sentencing
Guidelines was 235 months to 293 months. At sentencing, the
district court granted Vinson a variance, although not as large
as he had sought.
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section 102 of the Controlled Substances Act (21 U.S.C. § 802)),
for which a maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii) (2006).
Pursuant to Taylor v. United States, 495 U.S. 575, 600
(1990), the court uses a “categorical approach” to determine
whether a prior conviction serves as a predicate conviction
under § 924(e). United States v. Brandon, 247 F.3d 186, 188
(4th Cir. 2001). Under this approach, the court will “look [ ]
only to the statutory definitions of the prior offenses, and not
to the particular facts underlying those convictions.” Id.(quoting Taylor, 495 U.S. at 600).
Vinson claims that because the South Carolina statute
under which he was convicted also criminalizes the purchase of
drugs, the district court needs to look beyond the statute to
evaluate Vinson’s conduct. We disagree. Vinson actually
pleaded guilty to an offense that is enumerated in
§ 924(e)(2)(A)(ii). Therefore, as the Government points out, it
is not necessary for the district court to examine additional
material regarding the conviction. We also note that Vinson’s
reliance on United States v. Hernandez, 145 F.3d 1433 (11th Cir.
1998), and Brandon is misplaced. Hernandez involved a defendant
whose prior judgments were ambiguous about whether his drug
crimes involved the purchase or sale of drugs, while Brandon
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involved a defendant who pled guilty to a possession offense.
See 145 F.3d at 1440; 247 F.3d at 189.
Vinson also argues that one of his convictions for
possession with intent to distribute should be overturned
because it was obtained in violation of his Sixth Amendment
right to counsel. We reject this argument. Because Vinson did
not raise this claim in the district court, we review it for
plain error. See United States v. Grubb, 11 F.3d 426, 440-41
(4th Cir. 1993). To be plain, an error must be “clear” or
“obvious.” United States v. Olano, 507 U.S. 725, 740 (1993).
Vinson’s sole basis for his claim that he was unrepresented is a
line in his presentence investigation report stating that for
his February 1989 conviction, “[a]ttorney representation is
unknown.” However, the report also notes that at the time of
the conviction, South Carolina law required either that counsel
be provided or that the defendant make a voluntary and
intelligent waiver of his right to counsel. Mere ambiguity in
the presentence investigation report does not evidence a clear
or obvious error, and so Vinson’s argument fails.
Since we find that Vinson’s two prior convictions for
possession with intent to distribute and his prior aggravated
assault conviction qualify as predicate offenses under the ACCA,
we need not reach the merits of his other ACCA claims.
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Vinson’s final claim is that he should have been
permitted to withdraw his guilty plea. In this case, Vinson has
not met his burden in showing that the district court erred by
not allowing him to withdraw his plea. See United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991) (listing factors for
the district court to consider in deciding whether to allow a
defendant to withdraw his guilty plea). The district court
conducted a thorough plea colloquy, informing Vinson of the
potential penalties he was facing and ensuring Vinson’s plea was
knowing and voluntary. Further, we are particularly skeptical
of Vinson’s claim because Vinson did not raise the issue until
about a year after he entered the plea, after he was arrested on
another charge.
Vinson has also moved this court to allow him to file
a pro se brief. Since Vinson is represented by counsel, we deny
his motion.
For the reasons above, we affirm Vinson’s conviction
and sentence. 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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