United States v. Powell ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4447
DAVID D. POWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-97-544-DWS)
Submitted: December 22, 1998
Decided: January 19, 1999
Before WIDENER, ERVIN, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Marshall Prince, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
David D. Powell appeals from his conviction and his sentence of
365 months for possession of a firearm by a convicted felon in viola-
tion of 18 U.S.C. § 922(g)(1) (1994). Powell's attorney has filed a
brief in accordance with Anders v. California , 386 U.S. 738 (1967),
addressing whether the district court complied with the requirements
of Fed. R. Crim. P. 11 in accepting Powell's guilty plea and whether
the district court erred in overruling Powell's objections at sentencing.
Counsel asserts that there are no meritorious issues for appeal. Powell
was notified of his right to file an additional brief, but has not done
so. We affirm.
Powell first contends that the district court improperly conducted
the Rule 11 hearing in accepting his guilty plea. In reviewing the ade-
quacy of compliance with Rule 11, this court accords great deference
to the trial court's decision as to how best to conduct the mandated
colloquy with the defendant. See United States v. DeFusco, 949 F.2d
114, 116 (4th Cir. 1991). Rule 11 violations are evaluated under the
harmless error standard. Id. at 117. This court may vacate a convic-
tion resulting from a guilty plea only if the trial court's violations of
Rule 11 affected the defendant's substantial rights. Id.Our review of the record discloses that the district court sufficiently
complied with Rule 11 in informing Powell of his rights and in ascer-
taining the voluntariness of his plea. We find that because Powell's
substantial rights were not in any way compromised, any alleged error
during the Rule 11 colloquy was harmless.
Powell also maintains that the district court erred in overruling his
objections to the presentence report at sentencing. Powell objected to
a two-level enhancement for obstruction of justice and to the denial
of a reduction in his offense level for acceptance of responsibility. A
sentencing court's determinations regarding adjustments for accep-
tance of responsibility and obstruction of justice are primarily factual
and, thus, this court applies a clearly erroneous standard of review.
See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
In addition, the sentencing court's determination of whether it should
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reduce a sentence is entitled to great deference. See 18 U.S.C.A.
§ 3742 (West 1985 & Supp. 1998); United States v. Cusack, 901 F.2d
29, 31 (4th Cir. 1990).
The district court properly imposed an obstruction of justice
enhancement on Powell pursuant to U.S. Sentencing Guidelines
Manual § 3C1.1 (1997). According to the presentence report, Powell
sent a letter to a co-defendant asking him to take responsibility for
possession of some of the firearms in exchange for monetary compen-
sation. Powell admitted that he wrote the letter. In light of this, the
district court's conclusion to impose a two-level obstruction of justice
enhancement was not clearly erroneous.
The Guidelines allow for a reduction in a defendant's offense level
if the defendant clearly demonstrates a recognition and affirmative
acceptance of personal responsibility for his criminal conduct. See
USSG § 3E1.1. The defendant must prove by a preponderance of the
evidence that an acceptance of responsibility adjustment is warranted.
See United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990). To
qualify for the reduction, a defendant must make a voluntary and
truthful admission of the related conduct, a complete explanation of
all circumstances surrounding the offense, and a genuine acceptance
of responsibility. See United States v. Taylor , 937 F.2d 676, 679-80
(D.C. Cir. 1991). Moreover, a guilty plea does not automatically enti-
tle a defendant to a reduction for acceptance of responsibility. See
United States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989); United
States v. White, 875 F.2d 427, 432 (4th Cir. 1989).
The acceptance of responsibility adjustment is not ordinarily avail-
able to a defendant who obstructs justice, USSG§ 3E1.1, comment.
(n.4), and this is not an extraordinary case in which both adjustments
might be warranted. See United States v. Miller , 77 F.3d 71, 74 (4th
Cir. 1996). Accordingly, the district court did not clearly err in deny-
ing Powell a downward adjustment.
Next, Powell maintains that the district court erred at sentencing in
finding that his relevant conduct included possession of twenty-nine
firearms, one of which was a sawed-off shotgun. Although Powell
pleaded guilty to one count of possessing only two firearms, the pro-
bation officer held Powell accountable for twenty-nine firearms
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recovered by the police. The presentence report was based on state-
ments of individuals who stated that Powell and other co-defendants
sold the firearms as part of the overall conspiracy. Based on the evi-
dence presented, we find no error in the district court's attributing to
Powell a base offense level of 26 because of his prior convictions and
because one of the firearms was a sawed-off shotgun. See USSG
§ 2K2.1(a)(1). We also find no error in the imposition of a five-level
enhancement for the twenty-nine firearms recovered by the police.
See USSG § 2K2.1(b)(1)(E).
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tion and sentence. 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 the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court,
and oral argument would not aid the decisional process.
AFFIRMED
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