United States v. Riddle ( 2006 )

Rehearing granted, June 29, 2006
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4393
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL CLAYTON RIDDLE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., District
Judge. (CR-03-675)
Submitted: January 31, 2006 Decided: March 17, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel C. Riddle pled guilty to armed bank robbery, in
violation of 18 U.S.C. §§ 2113(a), (d) (2000). He was sentenced as
a career offender to 188 months in prison. Riddle now appeals.
His attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising one issue but stating that
there are no meritorious issues for appeal. Riddle has filed a pro
se brief and a supplemental brief raising additional issues. The
United States has filed a motion for remand for resentencing,
contending that Riddle’s sentence violates the Sixth Amendment
under United States v. Booker, 543 U.S. 220 (2005). We deny the
motion for remand, dismiss the appeal in part, and affirm in part.
I
The indictment charged Riddle with both armed bank
robbery (Count One) and using and carrying a firearm during the
commission of a crime of violence (Count Two). In return for the
guilty plea, Count Two was dismissed. Riddle now claims that his
plea was not voluntarily entered because the district judge
“browbeat” him into pleading guilty to armed bank robbery. Riddle
states that he was not armed. As evidence, he states that no gun
was found when he was apprehended shortly after the robbery, only
one witness who was in an office away from the lobby where the
robbery occurred claimed to have seen him with a gun, four
- 2 -
witnesses who were in the bank lobby did not see him with a gun,
and no surveillance camera showed that he had a gun at the time of
the robbery.
A guilty plea must be “a voluntary and intelligent choice
among the alternative courses of action open to the defendant.”
North Carolina v. Alford, 400 U.S. 25, 31 (1970), and may be
invalid if it was induced by threats or misrepresentations. See
Brady v. United States, 397 U.S. 742, 755 (1970). A defendant’s
statements at the Fed. R. Crim. P. 11 hearing are presumed to be
true. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Unsupported allegations on appeal are insufficient to overcome
representations made under oath at an arraignment. United
States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991); Via v.
Superintendent, Powhatan Correctional Ctr., 643 F.2d 167, 171 (4th
Cir. 1981).
Under these authorities, Riddle’s plea was voluntary.
His claim that he was unarmed at the time of the robbery
completely contradicts his sworn representations at his
arraignment.
II
In the Anders brief, counsel contends that the district
court erred when it denied Riddle’s motion for a downward departure
based on the ground that Riddle’s status as a career offender
- 3 -
significantly overstated his criminal history. After hearing
argument, the court denied the motion. Because the district court
did not mistakenly believe that it lacked power to depart, we are
without jurisdiction to review the court’s denial of the motion for
downward departure. See United States v. Bayerle, 898 F.2d 28, 30
(4th Cir. 1990).
III
Riddle maintains that he was improperly sentenced as a
career offender. One of the qualifying felonies for career
offender status was a 1999 conviction for failure to stop for a
blue light. Riddle argues that this offense is not so serious as
to be categorized as a crime of violence under U.S. Sentencing
Guidelines Manual § 4B1.2(a) (2003). We have held, however, that
failure to stop for a blue light is a “violent felony” under the
armed career criminal statute, 18 U.S.C.A. § 924(e) (West 2000 &
Supp. 2005), because it “involves conduct that presents a serious
potential risk of physical injury to another.” United States v.
James, 337 F.3d 387, 391 (4th Cir. 2003). For the same reason, the
offense is a qualifying felony for career offender purposes.
IV
Riddle also argues that his sentence as a career offender
violates the Sixth Amendment under Booker. We disagree. At the
- 4 -
time of the instant offense, Riddle stood convicted of two crimes
of violence: failure to stop for a blue light, a felony that
qualifies under James; and assault and battery of a high and
aggravated degree. The fact of these predicate convictions is
beyond dispute and clear from the judicial record. As such, there
was no Booker error in sentencing Riddle as a career offender. See
Shepard v. United States, 544 U.S. 13, ___, 125 S. Ct. 1254, 1263
(2005); United States v. Collins, 412 F.3d 515, 521-23 (4th Cir.
2005).
V
In accordance with Anders, we have thoroughly reviewed
the record in this case and found no meritorious issues for appeal.
We accordingly deny the motion for remand, dismiss in part, and
affirm in part. The motions to strike the Anders brief and for
substitute attorney are denied. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme
Court of the United States for further review. If his client
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on his client. We dispense with oral argument
because the facts and legal contentions are adequately set forth in
- 5 -
the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
- 6 -